US Supreme Court appears skeptical of Colorado effort to keep Trump off presidential ballot

The U.S. Supreme Court building | source: OZinOH

The U.S. Supreme Court heard oral arguments in Trump v. Anderson, which deals with Donald Trump’s challenge to a Colorado Supreme Court decision keeping him off the 2024 presidential primary ballot in the state. From its members’ comments, the court appeared unlikely to let Colorado exclude Trump from the ballot. 

Key Players

Citizens for Responsibility and Ethics in Washington (CREW) is a government watchdog organization that uses “aggressive legal actions, in-depth investigations, and innovative policy and reform work” to create a government that is “ethical, accountable, and open.” 

Donald Trump was president of the United States from 2017 to 2021 and is one of the respondents in the case. 

Jena Griswold is Colorado’s secretary of state and the other respondent in the case. 

Further Details

Congress adopted the 14th Amendment after the end of the Civil War in 1865 in hopes of reunifying the fragmented nation. Section 3 of the amendment bars individuals who engage or aid in an insurrection or rebellion against the nation from holding public office. The U.S. Supreme Court has never ruled on the specific clause, and many questions remain about how the provision should be implemented and under what circumstances an individual may be barred from running for office.

In September 2023, CREW filed a complaint on behalf of six Colorado voters in state court in Denver against Trump and Griswold, alleging that Trump should be kept from participating in the state’s March 5, 2024, Republican presidential primary. In a 115-page brief, the group detailed the actions of Trump leading up to, during, and following the assault on the U.S. Capitol on Jan. 6, 2021. “By instigating this unprecedented assault on the American constitutional order, Trump violated his oath and disqualified himself under the Fourteenth Amendment from holding public office, including the Office of the President,” the suit concludes.

The suit also states that Griswold is “responsible for ensuring the qualifications of candidates for statewide and federal elections” and therefore must exclude Trump’s name from appearing on the primary ballot on March 5, 2023. 

CREW was previously successful in barring a New Mexico county commissioner from taking office in 2022 because he had participated in the Jan. 6 insurrection. It was the first time in over a century that an individual had been barred from holding office under Section 3 of the 14th Amendment. 

In response to the suit, Griswold — a Democrat and a vocal opponent of Trump — said the case raised unanswered questions about Colorado law and about the federal Constitution. “I’m hopeful that this case will provide guidance to the state of Colorado but also election officials across the nation on Trump’s eligibility to run for office,” Griswold told Colorado Newsline after the suit was filed. She said she hoped the courts would resolve whether the 14th Amendment bars individuals from running for office or from being seated and outline the proper procedure for barring someone in either case.

J. Michael Luttig, a former judge on the 4th US Circuit Court of Appeals, nominated by the late President George H. W. Bush, and Laurence Tribe, a professor of constitutional law at Harvard Law School, argued that Section 3 “was designed to operate directly and immediately upon those who betray their oaths to the Constitution.” 

Ben Raffensperger, Georgia’s secretary of state, disagreed with Luttig and Tribe in an op-ed for The Wall Street Journal. He questioned whether the 14th Amendment was even meant to be permanent and argued that removing Trump from the ballot would “reinforce the grievances of those who see the system as rigged and corrupt”; states should thus leave it up to the voters to decide Trump’s fate, according to Raffensperger.

Trump, after failing to have the case dismissed on technical grounds, responded by claiming his actions on Jan. 6 were protected under the First Amendment. In a brief, Trump’s attorneys said he was protected because the 14th Amendment applies only to those who engage in an insurrection. The former president, they argued, was never physically present at the Capitol on Jan. 6, and thus was not engaged in the assault. 

Further, responding to CREW’s claims that Trump instigated the insurrection, Trump’s team asserted that “Trump’s actual words were protected speech under the First Amendment, and he did not ‘instigate’ any violence, insurrection, or rebellion.” The brief points to a test laid out in a 1969 case, Brandenburg v. Ohio. The Brandenburg test blames speech for inciting a riot only if it explicitly or implicitly calls for violence, if the speaker intended to incite violence, or if violence is the likely result of the speech. Trump’s team claimed that his speech on Jan. 6 failed all parts of the test.

The brief also notes that the Supreme Court said in a 1987 case, Rankin v. McPherson, that controversial content did not preclude speech from First Amendment protections. Therefore, regardless of the inflammatory nature of Trump’s words, said his lawyers, he retained his right to Free Speech. 

Judge orders Colorado to include Trump

On Nov. 17, 2023, Colorado District Judge Sarah B. Wallace, who was appointed by Democratic Gov. Jared Polis, ordered the state to include Trump in the upcoming primary. Interestingly, Wallace concluded that Trump did engage in an insurrection, but that his actions did not exclude him from being on the primary ballot. 

Wallace rejected Trump’s claim that his behavior on Jan. 6, 2021, was protected by the First Amendment. “Such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder,” she wrote. But she said that Section 3 of the 14th Amendment did not apply to current or former presidents.

“[I]t appears to the Court that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath,” Wallace wrote

Colorado Supreme Court overrules Wallace

On Dec. 19, Colorado’s Supreme Court voted 4-3 to bar Trump from appearing on the state’s primary ballot, overturning Wallace’s decision. The judges agreed with her characterization of Trump’s behavior as engaging in an insurrection against the United States, but, unlike her, found that his actions made him ineligible for the primary.

“President Trump is disqualified from holding the office of President under Section Three,” and thus the secretary of state should not include his name on the ballot, the ruling stated

According to the ruling, any ballots cast for Trump would not be counted. The court, however, said Trump’s name could remain on the ballot until and unless the U.S. Supreme Court ruled otherwise. 

The stakes grew on Dec. 28, when Maine’s Secretary of State announced that Trump would be barred from the primary ballot there because of his actions during the Jan. 6 insurrection. 

The U.S. Supreme Court announced on Jan. 5, 2024, that it would hear the case. The Colorado and Maine primaries are both scheduled for March 5. The administrative decision in Maine was stayed, pending the outcome of the Colorado case.

Outcome

Supreme Court justices seem skeptical of Colorado’s arguments

On Feb. 8, 2024, the Supreme Court heard oral arguments in the case.

Jason Murray, representing the Colorado voters, called attention to several historical examples of states relying on Section 3 to disqualify political candidates, including an 1868 congressional election in Georgia. He asserted there were no examples of states doing so in a presidential election because there had not yet been a need to do so.   

He also argued that Section 3 was designed to protect democracy. “The framers of Section 3 knew from painful experience that those who had violently broken their oaths to the Constitution couldn’t be trusted to hold power again because they could dismantle our constitutional democracy from within, and so they created a democratic safety valve,” Murray said. 

Jonathan Mitchell, who represented Trump, argued against the assertion that Trump engaged in an insurrection. “This was a riot,” he said. “It was not an insurrection. The events were shameful, criminal, violent, all of those things, but did not qualify as insurrection as that term is used in Section 3.”

Justice Brett Kavanaugh, who was appointed by Trump, seemed to agree, stating that it was constitutionally difficult to determine what constituted an insurrection.

“The term insurrection jumps out,” he said. “And the questions are: What does that mean? How do you define it? Who decides whether someone is engaged in it?”

Mitchell also asserted that a state could not bar an individual from the presidential ballot, even if they admitted to being an insurrectionist, warning this would “take away the votes of potentially tens of millions.”

Several justices seemed skeptical as to whether a state could make an election decision that would affect the rest of the country.

“The whole point of the 14th Amendment was to restrict state power, right?” Chief Justice John G. Roberts, appointed by former President George W. Bush, asked Murray. 

“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,” Justice Elena Kagan, appointed by former President Barack Obama, said.

Justice Amy Coney Barrett, appointed by Trump, said she believed it would be too large a logistical problem for each state to have to consider Trump’s presidential eligibility, agreeing with other justices in saying it “just doesn’t seem like a state call.”

Several of the justices pointed out that the issue of presidential qualification appeared to be more of a congressional matter.

Resisting this argument, Colorado Solicitor General Shannon Stevenson, representing Griswold, said that states having differing presidential ballots is a component of a functioning democracy. She also refuted assertions that the Colorado decision would be used to bar Democratic candidates from office, saying, “We have to have faith in our system” and in the “institutions in place to handle those types of allegations.”

This argument did not appear to convince President Justice Ketanji Brown Jackson, appointed by President Joe Biden; she said, “I guess my question is why the Framers would have designed a system that could result in interim dis-uniformity in this way?”

It is unclear when the Supreme Court will deliver its decision; however, until the court rules, Trump will remain on Colorado’s Republican primary ballot for March 5. 

As of Feb. 15, 2024, there were no further developments.