Justices Kagan, Jackson cast doubt on Colorado’s case to keep Trump off ballot

Did the Colorado Supreme Court err in ordering President Trump be excluded from the 2024 presidential primary ballot? That is the question the Supreme Court will answer, and during oral arguments on Thursday, Feb. 8, the justices cast serious doubts on Colorado’s decision.

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In December, Colorado’s Supreme Court ruled that former President Trump is disqualified from a second term because he engaged in insurrection and therefore the Colorado Secretary of State should keep him off the 2024 presidential primary ballot.

The case is grounded in Section 3 of the 14th Amendment of the U.S. Constitution, which 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…having previously taken an oath, as a member of Congress, or as an officer of the United States…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.”

Trump’s lawyers argued he can’t be removed from the ballot for two main reasons: 

1. President Trump is not covered by Section 3 because the president is not an officer of the United States. The “officer” term is used throughout the Constitution and refers only to appointed officials and it does not encompass elected individuals such as the president or members of Congress. 
2. Section 3 cannot be used to exclude a presidential candidate from the ballot, even if that candidate is disqualified from serving as president under Section 3, because Congress can lift that disability after the candidate is elected.

“What if somebody came into a State Secretary of State’s office and said, ‘I took the oath specified in Section 3. I participated in an insurrection and I want to be on the ballot.’ Does the Secretary of State have the authority in that situation to say, ‘No, you’re disqualified’?” Chief Justice John Roberts asked. 

“No, the Secretary of State could not do that consistent with term limits,” Jonathan Mitchell, attorney for former President Donald Trump, answered. “Because even if the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office and even win election to office and then see whether Congress lifts that disability after the election.”

Lawyers representing the Colorado voters who want Trump off the ballot argued: 

1. Section 3 does apply to presidents. It used deliberately broad language to cover all positions of federal power requiring an oath to the constitution. 
2. Article II and 10th Amendment give states the power to ensure their citizens’ votes aren’t wasted on a candidate who is barred from holding office. 

“States are allowed to safeguard their ballots by excluding those who are underage, foreign born, running for a third presidential term, or as here, those who have engaged in insurrection against the Constitution in violation of their oath,” Jason Murray, the attorney representing Colorado voters, said. 

Justices asked tough questions of both sides, but two of the court’s liberal justices, Elena Kagan and Ketanji Brown Jackson, directed particularly difficult questions to the lawyer representing Colorado’s voters. 

“This question of whether a former president is disqualified for insurrection to be president again, is, just say it, it sounds awfully national to me,” Justice Kagan said. “So whatever means there are to enforce it would suggest that they have to be federal, national means. If you weren’t from Colorado and you were from Wisconsin, or you were from Michigan, and it really, you know, what the Michigan Secretary of State did is going to make the difference between, you know, whether Candidate A is elected or Candidate B is elected man seems quite extraordinary, doesn’t it?”

Justice Jackson questioned Murray about the first line of Section 3, pointing out that president is not listed, just elector of president.

She also asked about state versus federal jurisdiction. 

“I guess my question is why the framers would have designed a system that would, could result in interim dis-uniformity in this way,” Justice Jackson said. “Where we have elections pending and different states suddenly saying you’re eligible, you’re not, on the basis of this kind of thing.”

“What they were concerned most about was ensuring that insurrectionists and rebels don’t hold office,” Murray responded.  

The oral arguments did not go into detail as to whether the events of Jan. 6, 2021 amounted to insurrection. Former President Trump’s lawyers said the events were a riot, while lawyers for Colorado voters described them as an insurrection. 

The justices will need to make a decision quickly, as Colorado’s Republican presidential primary is scheduled for March 5.