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Expect Justices to Allow Trump on All Ballots, Legal Experts Say

“Why [should] a single state decide who gets to be president?” Justice Elena Kagan asked at one point.

The U.S. Supreme Court on February 8, 2024, in Washington, D.C. The court is hearing oral arguments in a case on whether or not former President Trump can remain on the ballot in Colorado for the 2024 presidential election.

U.S. Supreme Court justices have expressed skepticism over Colorado’s recent decision to bar former President Donald Trump from the ballot, with some claiming that the precedent could allow for an unmanageable situation in the future.

The Colorado state Supreme Court deemed Trump, currently the frontrunner for the Republican Party nomination for president, an insurrectionist in December, due to his involvement in the January 6, 2021, attack on the U.S. Capitol. That court subsequently ordered him to be barred from the state ballot in the 2024 race due to Section 3 of the 14th Amendment, which disallows former government officeholders who have pledged to uphold the Constitution but who engage in insurrection from being able to hold office again, unless Congress removes that condition by a two-thirds vote.

Justices of the U.S. Supreme Court questioned lawyers from both sides of the issue — Jonathan Mitchell, who represented Trump, and Jason Murray, a lawyer representing the Colorado voters who originally brought the complaint against Trump’s eligibility to be president again. Notably, the justices didn’t spend much time on the question of whether Trump engaged in an insurrection, but rather focused on how the provisions of the 14th Amendment should be applied and which political entity (namely the states or Congress) could actually deem a person in violation of the insurrection clause.

While both sides struggled with answering some of the questions from justices regarding their arguments, members of the High Court appeared uneasy with allowing the Colorado Supreme Court ruling to stand.

Justices were dismissive of arguments from Mitchell that Trump, when he was president during January 6, wasn’t technically an “officer” of the United States. Section 3 of the 14th Amendment specifically states that it applies to former members of Congress, former members of state legislatures, former executive or judicial officers of states, or a former “officer of the United States,” but doesn’t explicitly include the president in its wording — an omission that Mitchell claimed excludes Trump from being deemed an insurrectionist.

The justices, including ones that Trump himself appointed, didn’t agree with Mitchell’s reasoning.

“Justice Gorsuch appears skeptical of Trump’s ‘the President is not an officer’ argument,” observed Neal Katyal, a former acting U.S. Solicitor General.

Justice Sonia Sotomayor also described Mitchell’s argument as a “bit of a gerrymandered rule designed to protect” Trump.

It’s unlikely that the justices will back the idea in their ultimate opinion, suggested New York Times reporter Charlie Savage, noting that it would likely create more headaches for them in the future.

“Notably if the term ‘office under the United States’ does not include the presidency, as Trump’s lawyer argues, it could have other constitutional consequences,” Savage wrote. “Among them: It could mean that a president could simultaneously hold a seat in Congress and that a religious test could be required as a qualification to be president.”

But while Trump’s lawyer’s arguments seemed weak at times, the Court was also reluctant to accept Murray’s notions.

Justice Clarence Thomas asked Murray if he had “examples…where the states disqualified national candidates.” Murray responded with one example from Georgia in 1868, but admitted that other examples weren’t readily available, a problem he said existed because of the way ballots were organized at that time in U.S. history. Thomas didn’t seem accepting of that answer.

Chief Justice John Roberts contended that Murray’s claim that Section 3 of the 14th Amendment could be utilized by the states was a stretch — no words in the amendment state as such, and the amendment, as a whole, restricts state powers while empowering federal ones.

“That seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical,” Roberts added.

Murray conceded that the amendment, as written, did restrain state powers, but not to the extent that they were disallowed from executing portions of the amendment altogether — states, indeed, cite other portions of the amendment in state-based judicial rulings they make. Article II of the Constitution also gives the states leeway to create other qualification standards for their own ballots (such as signature requirements for candidates to appear, for example), so disallowing states from using Section 3 to bar federal candidates would be wrong. Again, the conservative justice questioning Murray remained skeptical.

Even liberal bloc Justice Elena Kagan questioned the arguments Murray put forward, expressing concern that allowing states to interpret Section 3 on their own could lead to catastrophic outcomes.

“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. … That seems quite extraordinary, doesn’t it?” Kagan asked Murray.

Roberts extended that question to ask what would stop other states from responding to Colorado’s action by barring other candidates, in the future, for political reasons — a Republican-led state, for example, barring President Joe Biden from being able to run. Murray responded to that question by saying that states should still have the right to do so, but that the Supreme Court could rule to place standards on states that would disallow politically retributive actions.

Legal experts and other observers of Thursday’s Supreme Court proceeding indicated that Murray’s arguments weren’t compelling enough to convince the justices to allow Colorado’s court decision to remain in place.

“Just about every justice has asked pointed, skeptical questions of Murray. Even the Democratic-appointed ones haven’t thrown him lifelines,” said Associated Press reporter Nicholas Riccardi.

“My bet: Between 7-2 and 9-0 for the very specific proposition that states can’t unilaterally disqualify candidates running for President on the ground that they engaged in insurrection,” opined University of Texas law school professor Steve Vladeck on X. “That’s just a prediction based on the oral argument—not what I think the Court *ought* to do.”

“The Justices’ overarching concern: how you could possibly administer this disqualification from state to state?” wrote legal analyst Norm Eisen on X. “The real answer is, take it up [with] the framers who structured our federalism. But this concern is a serious one & is likely to carry the day.”

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