Supreme Court takes up Donald Trump’s ballot eligibility

The Supreme Court on February 8 will for the first time hear arguments over disqualifying a presidential candidate for allegedly engaging in insurrection, in a special sitting where lawyers for Donald Trump are seeking to keep his name on the Colorado ballot and defeat a legal challenge that could broadly threaten his candidacy.

The case involves not only the mayhem of January 6, 2021, when a pro-Trump mob raided the Capitol in an effort to prevent lawmakers from certifying President Biden’s victory in the November 2020 election. Equally at issue is the meaning of a spare phrase added to the Constitution following the Civil War disqualifying from public office former federal and state officers who “engaged in insurrection or rebellion against” the US and gave “aid and comfort” to its enemies, The Wall Street Journal reports.

There is little legal authority on applying the insurrection stricture, one of several provisions adding the Union’s war aims to the Constitution through the 14th Amendment. Contained in the amendment’s Section 3, it had a brief heyday; Congress passed an amnesty for most former rebels in 1872, and in 1898, President William McKinley signed legislation restoring the right of all former Confederates to hold public office.

But some lawmakers and legal scholars saw the January 6 attacks as an insurrection, and an advocacy group that had tangled with Trump during his presidency, Citizens for Responsibility and Ethics in Washington, sought to apply Section 3 to the perpetrators. CREW lawyers filed a suit that led New Mexico courts in 2022 to strip office from a county commissioner who had participated in the attack.

When Trump announced a campaign to retake the White House, CREW filed suit in Colorado to remove him from the ballot. State laws there make ballot challenges relatively straightforward. In December, a 4-3 Colorado Supreme Court affirmed a state trial judge’s finding that Trump engaged in insurrection by fomenting the attack, and ruled that he was covered by Section 3.

On appeal to the US Supreme Court, Trump’s lawyers have raised several arguments against his disqualification. The presidency, they say, isn’t covered by the disqualification clause, and, regardless, Trump’s actions related to the January 6 attack fall short of insurrection. Trump “never told his supporters to enter the Capitol, and he did not lead, direct, or encourage any of the unlawful acts that occurred at the Capitol,” their briefs say. To the contrary, they say, Trump several times on Jan. 6 used the word “peaceful” when addressing his followers.

And even if the allegations are true and Trump falls under the disqualification clause, the ex-president’s lawyers argue that Colorado courts have no power to enforce it. Instead, they write, Congress needs to spell out procedures for keeping insurrectionists and rebels from public office rather than allowing each state to fashion its own approach.

CREW is representing six Colorado voters who sued to strike Trump’s name—two independents and four Republicans, including a former congresswoman and a former majority leader of the state Senate.

The plaintiffs say that nothing in the Constitution makes the provision inoperative absent congressional action. Section 3 allows Congress to nullify an officer’s disqualification by a two-thirds vote of each house, which the plaintiffs say implies that Section 3 can be enforced by a state without special permission from Congress.

The most vigorous disagreements involve the way Trump’s Jan. 6 actions are characterized. While the ex-president’s lawyers stress that he never explicitly called for violence to stop Congress from certifying the election, the voters’ brief points to trial-court findings that Trump’s incessant flogging of his false claims of a stolen election and fueling of his followers’ feelings of grievance and outrage needed no translation.

“Requiring the individual to personally commit violent acts would also defeat a core purpose of Section 3: to target leaders rather than foot soldiers,” the brief says. “Leaders rarely take up arms themselves.”

Outside Colorado, several pending lawsuits seek to disqualify Trump from the ballot in other states. While several have been rejected, at least at this stage, Trump was barred from the ballot in Maine on insurrection grounds; that December decision from Secretary of State Shenna Bellows, a Democrat, is on hold until the Supreme Court decides the Colorado dispute.

“The weight of the evidence makes clear that Mr. Trump was aware of the tinder laid by his multi-month effort to delegitimize a democratic election, and then chose to light a match,” Bellows wrote in her decision.

February 8 probably won’t be the only time Trump’s name comes before the justices this year. He is expected to appeal Tuesday’s circuit court decision denying him categorical immunity for crimes allegedly committed while serving as president, in a case filed by Special Counsel Jack Smith over Trump’s efforts to retain office despite losing the 2020 election.

Separate criminal prosecutions and civil suits percolating against Trump in Georgia, New York and Florida could bring other issues to the justices later in the year.