The Supreme Court May Keep Donald Trump on the Ballot

In what may be one of the most consequential election cases ever heard by the U.S. Supreme Court, the nine justices listened Thursday to 80 minutes of lawyers’ oral arguments over the attempt by political activists to knock Donald Trump off the primary ballot in Colorado (and other states).

Although all of the justices asked tough questions of both sides in the case, Trump v. Anderson, the lawyer for the activists seemed to have the hardest time satisfying their concerns. 

The essence of the case is the decision by four justices of the Colorado Supreme Court, over the dissents of three colleagues, that because Trump engaged in an “insurrection” on Jan. 6, 2021, he is disqualified from being president under Section 3 of the 14th Amendment to the Constitution and thus may be removed from the ballot.

If the U.S. Supreme Court upholds the Colorado high court’s decision, it would disenfranchise millions of voters in Colorado and other states that follow Colorado’s misbegotten action, a concern raised by more than one justice during Thursday’s arguments. Those voters would have their right to choose who they think should be president taken away from them by a small group of state court judges and partisan election officials.

One could see the difference almost immediately in the opening statements of the two sides. Jonathan Mitchell, the former solicitor general of Texas who was arguing on behalf of Trump, presented a constitutional argument on why Colorado and other states don’t have the authority to enforce Section 3 against a federal candidate.

Mitchell also argued that the provision in the 14th Amendment doesn’t apply to Trump because the former president doesn’t fill the precondition of being a former “officer of the United States” since he was elected, not appointed, to a federal office. 

Mitchell spent a large part of his allotted time answering questions about the constitutional basis for that precondition, along with questions about whether Section 3 can be enforced when no federal legislation provides for that enforcement.

Jason Murray, representing the challengers who are trying to remove Trump from the Colorado ballot, opened with a polemic argument that Trump led a “violent attack” on the U.S. Capitol, the first time the building had been attacked since the War of 1812. Comparing the mostly peaceful protest and criminal trespassing carried out Jan. 6, 2021, by a relatively small number of individuals (which should not have happened) to the burning of the Capitol by invading British soldiers was so over the top that I had to check my notes to make sure I had heard Murray make that claim.

In his opening, Murray continued in this vein by claiming that Trump was trying to create a special exemption from Section 3 just for himself. He denied that the Section 3 applicability and enforcement issues could have any effect on all federal officials and candidates and the power of state officials to disenfranchise millions of voters. 

At one point, Murray referred to Chief Justice John Roberts’ raising of problems that could arise from giving state authorities such removal power as “frivolous.” Roberts responded strongly that those potential problems were not frivolous. 

Murray’s self-righteous attitude about his clients’ claims during his opening and the questioning by the nine justices certainly did not, in my view, help him in advancing his clients’ cause.

Mitchell, arguing for Trump, also got some hard questions from the justices. But unlike Murray, who seemed unable to admit to any weaknesses in his argument, Mitchell occasionally would admit when there was ambiguity in the legislative history or prior precedents, making some concessions that seemed unwarranted to me. 

Several justices questioned Murray about the problem of uniformity and what would happen if different state courts and state officials came to totally different conclusions on whether a candidate had engaged in an insurrection, applying different standards of review. 

Murray kept denying that would cause any problems. Justice Samuel Alito particularly pressed him on that issue, at one point becoming so frustrated by Murray’s nonresponses to how such problems could be managed that he said, “I am not getting a lot of help [from Murray].”

What was clear from Murray’s arguments for the anti-Trump activists is that he sees no problem whatsoever in opening the Pandora’s box of giving state officials the power to remove federal candidates from the ballot, despite the conflicting decisions that likely would result from numerous states. 

In response to a question, Murray denied that the decision of one state such as Colorado would have any effect on the voters of any other state. This is another astonishing claim. As one justice pointed out, if the outcome of a presidential election came down to the results in one state, as happened in 2000, such a decision by a lone election official, perhaps a partisan secretary of state, to remove one of two major presidential candidates from the ballot obviously would disenfranchise voters across the rest of the country.

Justice Brett Kavanaugh asked Murray to respond to concerns raised by one of the dissenting Colorado Supreme Court justices over the lack of due process for Trump in a truncated civil election proceeding, as compared to the due process rights to which he would be entitled in a criminal prosecution. 

Murray dismissed those concerns. He also dismissed any concerns over removing the ability of millions of voters to make their own choice of who should be elected. He claimed that enforcement of Section 3 of the 14th Amendment actually “safeguards our democracy,” which seems a glaring contradiction.

Although each side had 40 minutes to argue its case, Murray argued for only 30 minutes because the high court gave Colorado’s secretary of state 10 minutes to participate. Representing that office, Shannon W. Stevenson, solicitor general of Colorado, argued for the secretary of state’s complete authority to make such decisions on disqualifying a candidate.

It is always hard to predict from the questioning how the Supreme Court will rule, but Colorado seemed to have a tougher time justifying its view of the law. 

Although the Supreme Court never announces ahead of time when it will release an opinion, no doubt the justices know that we are already in the middle of the primary and election season and that ballots are being printed and sent to voters. I expect that we will get a decision—one with lasting effects far beyond 2024—very quickly from the high court.

Hans von Spakovsky is a senior legal fellow at The Heritage Foundation, a former commissioner on the Federal Election Commission, and former counsel to the assistant attorney general for civil rights at the U.S. Department of Justice. He is a member of the board of the Public Interest Legal Foundation.

This article was first published by The Daily Signal.