SCOTUS Hears Oral Arguments on Trump Ballot Case

The United States Supreme Court on Thursday heard oral arguments in the case of Trump v. Anderson out of Colorado concerning former President Donald Trump’s eligibility to appear on the state’s presidential primary ballot.

That decision will determine whether Maine Secretary of State Shenna Bellows’ has the authority to block Trump from appearing on Maine’s ballot.

Based on the nature of questions asked during the hearing, including by the Court’s more liberal Justices, it appears the court is leaning in Trump’s favor.

Representing the former president was attorney Jonathan Mitchell, and attorney Jason Murray provided legal representation for the respondents.

Colorado Solicitor General Shannon Wells Stevenson also appeared before the Supreme Court on behalf of the Colorado Secretary of State.

Throughout the course of the two-plus hours of oral arguments, the Justices raised a number of complex legal issues surrounding the Colorado Court’s ruling, as well as the potential consequences associated with the potential ways in which they could decide the case.

In early January, the United States Supreme Court agreed to review the Colorado Supreme Court’s December decision that former President Trump was ineligible to appear on the state’s primary ballot.

This marked the first time in United States history that Section Three of the 14th Amendment — added to the Constitution during the Civil War era — has been used to disqualify a presidential candidate.

Section Three of the Fourteenth Amendment states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The events that transpired on January 6, 2021 — as well as what the former president did and did not do that day — remained largely in the background during Thursday’s oral arguments.

Instead, the Justices focused primarily on questions surrounding states’ authority to determine a presidential candidate’s eligibility to appear on the a primary ballot under Section 3 of the 14th Amendment.

Because Congress has the ability to “remove [the] disability” of a Section 3 disqualification, Mitchell argued before the Court that “a state cannot exclude any candidate for federal office from the ballot on account of Section 3” because “any state that does so is…altering the Constitution’s qualifications for federal office.”

“Even if the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office, and even win election for office, and then see whether Congress lifts that disability after the election,” Mitchell said.

Murray, on the other hand, argued that just because Congress could eventually “remove [the] disability” does not mean that an otherwise-disqualified candidate ought to be deemed eligible to run for office absent receipt of such a waiver.

“The fact that Congress has power to remove the disability does not negate the present qualifications,” Murray said. “Nor does it bestow on President Trump a Constitutional right to run for office he cannot hold in violation of state law and state procedure under Article II.”

“It seems to be that you’re asking to enforce in election contexts a provision of the Constitution that speaks to holding office,” said Justice Neil Gorsuch, referring to remarks made by Murray.

“Section 3 refers to the holding of office, not running for office,” Justice Samuel Alito said. “And so, if a state or Congress were to go further and say that, ‘You can’t run for the office. You can’t compete in a primary,’ wouldn’t that be adding an additional qualification for serving for president? You must have been free from this disqualification at an earlier point in time than Section 3 specifies.”

The debate over whether or not Section 3 of the 14th Amendment is self-executing also came up during Thursday’s oral arguments, with the lawyers and Justices conversing at various points during the proceedings about the ability — or lack thereof — for Section 3 to be enforced in the absence of a Congressional statute.

Another major issue raised during Thursday’s oral arguments was the applicability Section 3 to the presidency.

Mitchell argued to the Justices that the Section 3 cannot be understood as applying to the president because the office is not listed directly in the clause, nor can it be understood as being encompassed under the umbrella terms of “office” or “officer of the United States.”

Murray took issue with this interpretation, contending instead that the text ought to be understood as clearly referring to all government officials — including the president and vice president — despite the seemingly-vague construction of the Amendment.

“I didn’t see any evidence that the presidency was top of mind for the framers when they were drafting Section 3 because they were actually dealing with a different issue,” Justice Ketanji Brown Jackson said. “The pressing concern, at least as I see the historical record, was actually what was going on at lower levels of the government, the possible infiltration and embedding of insurrectionists into the state government apparatus.”

“They were listing people that were barred and ‘president’ is not there,” Justice Jackson said. “I guess that just makes me worry that maybe they weren’t focused on the president.”

Jackson went on to suggest that given the “ambiguity” of Section 3, it would perhaps be better to err “on the side of democracy” when interpreting its applicability.

It was also pointed out by the Justices that Section 3 has almost never been used in the manner that Colorado is attempting to in this case — as a means by which to disqualify a presidential candidate from appearing on the ballot.

Justice Clarence Thomas asked Murray if he could point to any “contemporaneous examples” of Section 3 being used in this way.

“And by contemporaneous I mean, shortly after the adoption of the 14th Amendment, where the states disqualified national candidates — not its own candidates — but national candidates,” Justice Thomas said.

Murray responded by citing a single example out of Georgia, suggesting that the lack of historical evidence for Colorado’s interpretation stems not from illegitimacy but rather from differences in how elections were conducted compared to today.

“I think it’s not surprising that there are few examples because we didn’t have ballots in the same way back then,” Murray said. “Candidates were either write in or they were party ballots, so the states didn’t run the ballots in the same way.”

Justice Sonia Sotomayor noted that there is, however, historical precedent for using Section 3 to disqualify those who have been involved with insurrection from state-level offices.

“History proves a lot to me and to my colleagues,” Justice Sotomayor said. “There’s a whole lot of examples of states relying on Section 3 to disqualify insurrectionists for state offices.”

Much like Murray, Stevenson also argued in favor of a state’s authority to enforce an individual’s disqualification under Section 3, suggesting that it is no different than barring someone from appearing on the ballot for being too young, for example.

“Under the 14th Amendment, the states have the power to enforce Section 3, just like they do other presidential qualifications,” Stevenson said.

During one of the few instances where the events of January 6, 2021 were discussed, Trump’s attorney made a point of arguing that what occurred at the Capitol ought not be classified as an insurrection.

“This was a riot. It was not an insurrection,” Mitchell said. “The events were shameful criminal violence, all those things, but did not qualify as insurrection as that term is used in Section 3.”

Murray, on the other hand, maintained throughout his interactions with the Justices that the events of January 6 did constitute an insurrection, pushing back against concerns that labeling them as such would open a Pandora’s box of Section 3 disqualification claims.

“This court can write an opinion that emphasizes how extraordinary ‘insurrection against the Constitution’ is and how rare that is because it requires an assault not just on the application of law, but on constitutionally mandated functions themselves like we saw on Jan. 6,” Murray said.

“The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance,” he said.

Justice Brett Kavanaugh posited a series of questioning concerning the use of the term insurrection in Section 3, including with regard to how it ought to be interpreted and by whom.

“When you look at Section 3, the term insurrection jumps out and the question is, the questions are: What does that mean? How do you define it? Who decides, who decides whether someone is engaged in it? What processes, as Justice Barrett alluded to, what processes are appropriate for figuring out whether someone did engage in that?” Justice Kavanaugh said.

The authority — of lack thereof — that a state may arguably have to disqualify a candidate for federal office under Section 3 was also a point of contention during Thursday’s proceeding.

Chief Justice John Roberts suggested that reading the 14th Amendment to bestow states with the power to regulate presidential elections would be “at war” with the overarching design of the provision.

According to Chief Justice Roberts, the 14th Amendment was largely designed to restrict state power in the wake of the Civil War, thereby calling into question interpretations that would suggest that it contained a provision that would expand states’ authority in such a dramatic way.

“Wouldn’t that be the last place that you’d look for authorization for the states, including Confederate states, to…enforce the presidential election process?” Roberts asked.

Several of the Justices also specifically spoke to concerns over the potential ramifications of the Court upholding the Colorado decision, including the possibility that a single state could ultimately be able to determine who can and cannot be the President of the United States.

“It will come down to just a handful of states that are going to decide the presidential election,” Roberts said. “That’s a pretty daunting consequence.”

“The consequences of what the Colorado Supreme Court did, some people claim, would be quite severe,” Justice Alito said. “The decision of the Colorado Supreme Court could effectively decide this question for many other states, perhaps all other states.”

“I think that the question that you have to confront is why a single state should decide who gets to be president of the United States,” said Justice Elena Kagan. “This question of whether a former president is disqualified for insurrection, to be president again.”

“It sounds awfully national to me,” Justice Kagan concluded.

“It just doesn’t seem like a state call,” echoed Justice Amy Coney Barrett.

Although the legal battle out of Colorado has been at the forefront of the discussion concerning the former president’s eligibility to run for office, Trump has faced similar challenges in a number of states across the country — including in Maine, where the deliberative burden fell upon Secretary of State Shenna Bellows, as opposed to the judicial system.

In light of the Colorado Court’s ruling, Secretary Bellows also moved to block the former president from accessing Maine’s primary ballot.

The following week, Trump appealed Bellows’ decision, arguing not only against her interpretation of the law and Constitution, but also in opposition to her authority and eligibility to weigh in on the issues presented to her.

The Maine Superior Court then ordered Bellows to revisit her ruling again after the United States Supreme Court weighs in on the case out of Colorado, as it is expected that their opinion will offer critical and more broadly applicable insights on this matter.

Bellows went on to appeal this decision to the state’s Supreme Court, arguing that reconsideration of her ruling after the Supreme Court issues its opinion would push the closure of this matter too close to Maine’s presidential primary, which is scheduled to be held on March 5.

The Maine Supreme Court ultimately dismissed her appeal as interlocutory, meaning that the Court declined to weigh in on the Superior Court’s ruling because its ruling was not a final decision.

Consequently, Bellows will be required to reconsider her decision to block Trump from appearing on Maine’s presidential primary ballot in light of the United States Supreme Court’s ruling in Trump v. Anderson within thirty days of an opinion being released.

As of now, there is not set time frame within which the Supreme Court can be expected to release its opinion in the Colorado case, but many speculate that due to the impending nature of the 2024 election that the Justices will resolve the matter with expediency.

Click Here to Listen to Thursday’s Supreme Court Oral Arguments