WASHINGTON — The Supreme Court on Thursday cast doubt on Colorado's authority to remove former President Donald Trump from the Republican primary ballot as he tried to overturn the results of the 2020 election.
During the two-hour argument, the majority of justices held that states have no role in deciding whether a presidential candidate can be barred from running under the Constitution's 14th Amendment provision barring “insurrectionists.” holds office.
The justices raised concerns about states reaching different conclusions about whether a candidate can run, and many pointed out that only Congress can enforce the provision at issue.
The Supreme Court, with its 6-3 conservative majority, has dealt with several innovative and consequential legal issues related to Section 3 of the 14th Amendment to the Constitution enacted in the wake of the Civil War.
Under that provision, anyone who had previously served as an “officer of the United States” and then engaged in rebellion would be barred from federal office, with the goal of preventing ex-Confederates from regaining power in the U.S. government.
Chief Justice John Roberts said the “whole point” of the 14th Amendment was to limit state power after the Civil War, and questioned why it would give states the ability to remove a presidential nominee from the ballot.
Taking a similar approach, conservative Justice Brett Kavanagh said it was clear from the entirety of the 14th Amendment that “Congress has the primary role here.”
The justices also wondered about the practical implications of allowing the provision to be interpreted on a state-by-state basis.
Justice Elena Kagan, one of the three liberal justices, said, “Why can a state decide who is president of the United States? That's pretty unusual, isn't it?” he asked.
Conservative Justice Samuel Alito called it an “uncontrollable situation” for states to make differing decisions on the issue.
Justice Kentaji Brown Jackson, one of the liberals, asked why the framers of the 14th Amendment would have “designed a system that would create a medieval inconsistency. It says, 'You deserve it, you don't.'
The Colorado Supreme Court ruled in December that Trump could be thrown out of the Republican primary, but put the decision on hold while he appeals.
The case could have broader implications if Trump loses, as other states could follow suit, hampering his bid to regain the presidency this fall. State officials in conservative-controlled governments have also warned they may seek to remove President Joe Biden from the ballot.
Trump, who has frequently attended recent court hearings in various civil and criminal cases involving him, was not in the courtroom Thursday.
The legal challenge was filed on behalf of six Colorado residents, four of them Republicans, by a left-wing government watchdog group. Citizens for Responsibility and Ethics in Washington and two law firms.
They allege in court documents that Trump “deliberately organized and incited a violent mob to attack the United States Capitol in a desperate attempt to prevent the counting of electoral votes cast against him.”
Trump's attorneys presented several reasons for tossing the case. They argue that the president is not an officer of the United States, that Trump is not in rebellion, and that only Congress can invoke Article 3.
There were judges Heard from lawyers Trump is representing the Colorado plaintiffs and Colorado Secretary of State Jenna Griswold, the state's top elections official.
The conservative majority includes three justices — Neil Gorsuch, Brett Kavanagh and Amy Coney Barrett — appointed by Trump. Another conservative, Judge Clarence Thomas, faced investigation into his involvement in the case because of the role of his wife, conservative political activist Virginia “Ginny” Thomas, in supporting Trump's challenge to the election results. Some Democrats have called on Thomas to recuse himself.
Despite the court's conservative majority, it has consistently handed Trump losses since leaving office.
Interest in the Colorado case increased when Maine's top election official ruled that Trump was ineligible to appear on the state's Republican primary ballot. Like the Colorado dispute, that case was put on hold, meaning Trump is now on the ballot in both states.
The Supreme Court is hearing the Colorado case on an accelerated schedule, with a ruling expected within weeks. Colorado is one of a dozen states with primary elections on March 5.
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