©Reuters. FILE PHOTO: The U.S. Supreme Court in Washington, U.S., September 22, 2023. REUTERS/Evelyn Hockstein/File Photo
By Andrew Chung, John Kruzel and Andrew Goudsward
WASHINGTON (Reuters) -Donald Trump appeared headed for a major legal victory at the U.S. Supreme Court, after the justices on Thursday signaled their willingness to reject a judicial decision expelling the former president from the Colorado ballot for taking part to an insurrection during the 2021 Capitol attack.
The nine justices heard about two hours of arguments in Trump’s appeal of the Colorado Supreme Court’s Dec. 19 ruling disqualifying him from the March 5 Republican primary election under the 14th Amendment of the U.S. Constitution after finding that he had participated in an insurrection.
The ruling in the case promises important implications for the November 5 elections. Trump, who did not participate in the discussions, is the clear favorite for the Republican nomination to challenge Democratic President Joe Biden.
Section 3 of the 14th Amendment bars from holding public office any “officer of the United States” who has taken an oath “to support the Constitution of the United States” and then “engaged in insurrection or rebellion against the same , or gave aid or comfort to his enemies.”
The justices — conservatives and liberals alike — expressed concerns when discussing states taking sweeping actions that could impact presidential elections nationwide. They have pondered how states can properly enforce Section 3’s disqualification language against candidates, and many question whether Congress should first pass legislation allowing it.
The Supreme Court’s 6-3 conservative majority includes three Trump-appointed justices.
Conservative Chief Justice John Roberts told Jason Murray, the lawyer representing four Republican voters and two unaffiliated voters who sued to keep Trump off the ballot in Colorado, that if the judicial decision were to be upheld, other states would proceeded with its own disqualification proceedings against Democratic or Republican candidates.
“It’s only going to be a handful of states that decide the presidential election. That’s a pretty disheartening consequence,” Roberts said.
Anti-Trump forces have tried to disqualify him in more than two dozen other states — a mostly unsuccessful effort — for his actions related to the attack on the Capitol on January 6, 2021. But Maine also barred Trump from its ballot , a decision suspended pending a ruling from the Colorado Supreme Court.
“I think the question that needs to be addressed is why a single state should decide who becomes president of the United States,” liberal Justice Elena Kagan told Murray. “The question of whether a former president is disqualified for an insurrection to be president again… strikes me as terribly national.”
Conservative Justice Brett Kavanaugh, a Trump appointee, focused on the impact on democracy if Section 3 states could block candidates from their Section 3 ballots.
“Think about the right of the people to elect the candidates of their choice, to let the people decide, because your position has the effect of significantly disenfranchising voters,” Kavanaugh told Murray.
Murray offered a blunt response: “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 “.
Trump supporters attacked police and invaded the Capitol in an attempt to stop Congress from certifying Biden’s 2020 election victory. Trump gave an incendiary speech to supporters beforehand, telling them to go to the Capitol and “fight like a damned”. He then rejected requests for hours to urge the crowd to stop.
The 14th Amendment was ratified following the American Civil War of 1861-1865 in which secessionist Southern states that allowed the practice of slavery rebelled against the U.S. government.
“The framers of Section 3 knew from painful experience that those who had violently violated their oaths to the Constitution,” Murray said, referring to officials in seceding states, “could not be trusted to hold power again because they might dismantle the our constitutional democracy from within”.
Roberts asked Jonathan Mitchell, Trump’s lawyer, whether a state’s top election official can disqualify a candidate who comes forward and says he took the oath mentioned in the provision and engaged in an insurrection.
“If the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run and even win the election — and then see if Congress eliminates that inability after the election,” Mitchell said.
‘I AM A BELIEVER’
After the arguments, Trump said in a speech in Florida that he had listened to the proceedings and “thought our arguments were very, very strong.” Trump, who has sought to paint the case as part of a broader effort by Democrats to keep it off the ballot, has indicated he believes disqualification is unlikely.
“I believe in our country and I believe in the Supreme Court,” Trump said.
The last time the Supreme Court played such a central role in a presidential contest was in 2000, when the landmark Bush v. Gore handed Republican George W. Bush the presidency over Democrat Al Gore.
The justices debated the applicability of an 1869 decision authored by then-Chief Justice Salmon Chase — albeit while presiding over a lower court — in determining how a disqualification under Section 3 can now be applied. Kavanaugh has suggested to Mitchell that the Chase decision, which found that congressional legislation was necessary to enforce Section 3, is “highly probative” of the meaning of Section 3.
The justices spent little time on Jan. 6 or Trump’s role in those events, even as liberal Justice Ketanji Brown Jackson pressed Mitchell on whether the attack was an insurrection.
“Your point is that a chaotic effort to overthrow the government is not an insurrection?” Jackson asked.
“This was a riot. This was not an insurrection,” Mitchell told Jackson. “The events were shameful, criminal, violent, all of those things, but they did not qualify as an insurrection as the term is used in Section 3.”