The justices’ ruling on a case from Colorado will have major implications.
The Supreme Court appears deeply skeptical of a case questioning former President Trump’s eligibility to run for president and it could have far-reaching effects. The issue at hand is whether Trump, who’s once again the front-runner for the Republican presidential nomination, can be excluded from a ballot because of his role in the Jan. 6, 2021 attack on the U.S. Capitol.
After more than two hours of oral arguments on on Feb.8, justices on both the left and the right raised questions about the ramifications of letting individual states decide whether a candidate is an insurrectionist. “The question that you have to confront is why a single state should decide who gets to be president of the United States,” liberal Justice Elena Kagan asked Jason Murray, the lawyer representing the six Colorado voters who filed suit to exclude Trump from the ballot.
Though the question stems from the Centennial State, the impact of the court’s ruling could determine how other states handle the issue of Trump’s place in the 2024 race. This includes Maine, which has a pending ruling similar to Colorado’s that says that Trump is ineligible to run for office. But for now, Trump remains on ballots in both states as he appeals those cases.
As we await this consequential outcome, here’s a closer look at what SCOTUS had to say and the Colorado case.
What did the Supreme Court say?
The justices as a whole appeared sharply critical of the notion that states could determine the use of the 14th Amendment’s “insurrection clause,” which is a post-Civil War amendment intended to bar former Confederate leaders from holding office.
“I would expect that a goodly number of states will say whoever the Democratic candidate is, ‘You’re off the ballot.’ For the Republican candidate, ‘You’re off the ballot,'” Chief Justice John Roberts said. “It will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.”
There were also some questions as to whether the amendment even applied to Trump. Justice Ketanji Brown Jackson, who was appointed by President Biden, seemed unexpectedly sympathetic to the argument that the relevant section of the 14th Amendment doesn’t apply to the office of the presidency. “Why didn’t [the drafters] put the word president in the very enumerated list in Section 3?” she asked, referring to the list of government positions specified in the provision. “They were listing people that were barred, and president is not there.”
While the court hasn’t set a specific timeline for its decision, there’s a sense of urgency to the case in light of the upcoming March primaries. Legal scholar Rick Hasen filed an amicus brief urging SCOTUS to quickly issue a definitive ruling on the case.
“The most important thing for the Supreme Court to do is to decide the case definitively and quickly,” says Hasen, an election law professor at the University of California Los Angeles. “Voters risk being disenfranchised if they vote for a candidate ultimately found to be ineligible, and the country could be thrown into chaos if the Court does not resolve the question and leaves it to Congress to resolve on January 6, 2025.”
What do we know about the Colorado lawsuit?
In a historic ruling, the Colorado Supreme Court removed the Republican frontrunner from the state’s 2024 primary ballot after determining that he’s ineligible to hold office because he violated Section 3 of the 14th Amendment by engaging in insurrection.
“President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary,” the court wrote.
The case was first filed in September by six Colorado voters — including four Republicans and two independents — with the help of the liberal watchdog group Citizens for Responsibility and Ethics in Washington. Together, they argued that the former violated Section 3 of the 14th Amendment, which states that U.S. officials who take an oath to uphold the Constitution are banned from future office if they “engaged in insurrection or rebellion.”
While Colorado District Judge Sarah B. Wallace agreed that Trump “engaged in insurrection,” she ruled that the disqualification clause in question doesn’t apply to the presidency — and therefore, Trump could stay on the ballot. The state’s Supreme Court then reversed this decision on Dec. 19, saying Trump is disqualified based on the Constitution’s insurrectionist ban. “We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection,” the opinion states.
Trump responded by appealing the Colorado case to the Supreme Court. The justices have since taken up the case, and at the former president’s request, agreed to fast-track it because of Colorado’s upcoming primary on March 5. Similar cases are playing out elsewhere: At least 18 states, including Oregon and Massachusetts, have a decision or appeal pending on Trump’s eligibility. But many of these efforts have fallen short — for instance, the Minnesota Supreme Court threw out a case aiming to disqualify him from running for president. Similarly, the Illinois State Board of Elections declined to remove him from the ballot in a unanimous vote.
What does the 14th Amendment have to do with it?
The Colorado case argues that Trump is disqualified from becoming president again because he broke Section 3 of the 14th Amendment through both his words and actions — namely, his false claims of election fraud; the speech he gave on Jan. 6, when he told the crowd to “fight like hell”; and his efforts to block certification of President Biden’s election victory.
“We are here because Trump claims, after all that, he has the right to be president again,” Eric Olson, a lawyer for the plaintiffs, said during a court hearing on the case. “But our Constitution, our shared charter of our nation, says he cannot do so.”
But how the clause applies to Trump is up for debate. The language was originally ratified in 1868, shortly after the Civil War, and back then it applied to people who had fought for the Confederacy, aiming to prevent them from taking government positions. (Colorado District Judge Sarah B. Wallace’s earlier ruling that Trump should stay on the ballot related back to this question of the law’s application to the presidency.)
Trump has called the Colorado lawsuit and others like it an “absurd conspiracy theory,” and his legal team argues in court documents that the First Amendment right to free speech protects the former president from allegations that he engaged in insurrection. One of his lawyers, Scott Gessler, has even gone so far as to call these efforts to remove Trump from ballots “anti-democratic.”
It’s worth noting that this effort isn’t entirely unprecedented: There were attempts to keep President Barack Obama and the late Arizona Sen. John McCain off ballots, claiming that they weren’t natural-born citizens. (For the record, Obama, who was born in Hawaii, and McCain, who was born in the Panama Canal Zone, were both U.S. citizens.)
While those cases didn’t involve the 14th Amendment, that specific statute has dramatically come into play more recently. Georgia State University law professor Anthony Michael Kreis points out that only one person has been barred from office on that basis since Jan. 6, and that was New Mexico county commissioner Couy Griffin, who was found guilty of entering a restricted area during the riot. While this bolstered the idea that the same rules could apply to Trump, a similar argument failed to pass muster when it was used against Georgia Rep. Marjorie Taylor Greene last year.
For more on the legal theorizing behind this case, check out Katie’s conversation with Laurence Tribe, professor emeritus of constitutional law at Harvard University, below:
What are legal experts saying about efforts to bar Trump?
Many of Trump’s critics claim the strategy of challenging his candidacy under the 14th Amendment is rock solid, though those who hold this view are mostly liberal.
That argument got a major boost from the other side of the aisle after two prominent conservative legal scholars — William Baude and Michael Stokes Paulsen — penned an analysis in the University of Pennsylvania Law Review concluding that Section 3 “remains an enforceable part of the Constitution, not limited to the Civil War.”
“It covers a broad range of former offices, including the Presidency,” the authors of that paper wrote. “And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”
But that view isn’t universal among legal scholars. For instance, some argue that too loose of an interpretation of the third section of the 14th Amendment could threaten our democracy as we know it.
“We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic,” Stanford Law School Professor Michael McConnell wrote in response to Baude and Paulsen’s conclusion.
For more expert analysis about where this cases is headed, check out Katie’s conversation with Neal Katyal, an attorney and academic who has argued in front of the Supreme Court himself, below:
How will this case play out?
Supreme Court justices have a long list of legal questions to answer.
“The 14th Amendment disqualification question is an onion with multiple, complex layers,” says Kreis. “The issue is not simply about whether Donald Trump engaged in acts of insurrection as a factual matter that might render him ineligible for the presidency, but also who decides.”
SCOTUS also faces a ton of pressure, as the public already views the country’s conservative majority through a partisan lens. According to an ABC News/Ipsos poll last year, 53 percent of Americans say the justices are basing their rulings on their partisan political views.
Still, this isn’t the first time the high court has weighed in on an election case — for instance, take Bush v. Gore. In 2000, it reversed an order by the Florida Supreme Court for a recount of the state’s presidential election ballots. The 5–4 decision effectively awarded 25 Electoral College votes to Republican candidate George W. Bush, making him victorious over Democratic candidate Al Gore. Out of the nine sitting justices, only Justice Clarence Thomas was on the bench at the time.
Whatever the court decides, their ruling will likely have a major impact on this year’s presidential election, so this is a case we’ll be watching closely.
