Donald Trump's bid to get back on the ballot in Colorado could hinge on interpretations of the Constitution made in the immediate aftermath of the Civil War, according to legal experts.
Trump was declared ineligible to appear on the Colorado ballot on December 19.
The decision marked the first time in history that Section 3 of the 14th Amendment was used to disqualify a presidential candidate, and the U.S. Supreme Court agreed on Jan. 5 to hear Trump's appeal of the Colorado Supreme Court's decision .
The oral hearing will take place on February 8th.
Lawyers on both sides will rely on arguments made 150 years ago by Salmon Chase, a member of Abraham Lincoln's cabinet whom Lincoln appointed to the Supreme Court in 1864.
Donald Trump is seen addressing Chief Justice John Roberts as he delivers his State of the Union address on February 4, 2020. Roberts and the other Supreme Court justices will hear arguments
Salmon Chase was the Republican governor of Ohio before being appointed to Lincoln's cabinet. Lincoln then appointed him to the Supreme Court
An illustration depicting the first reading of the Emancipation Proclamation before Lincoln's cabinet. Chase stands behind Lincoln
Chase ruled in December 1868 on Section 3 of the 14th Amendment, which had not taken effect until July of that year.
Section 3 was designed after the Civil War to prevent Confederate voting.
“No person shall be a Senator or Representative in Congress, or an elector of the President or Vice President, or hold any office, civil or military, in the United States, who… has taken part in any insurrection or rebellion against them, or given aid or comfort to his enemies “, it says.
Chase decided that Jefferson Davis, the defeated Confederate president, should not be prosecuted for treason.
He argued that Section 3 – preventing Davis from exercising his office – was a form of punishment and therefore precluded any further criminal prosecution.
At the time, Chase, the former Republican governor of Ohio, was considering running for president as a Democrat and hoping to gain traction with Davis' Democratic colleagues.
On January 6th, rioters are seen scaling the walls of the Capitol
A year later, Chase issued a counterdecision when confronted again with the Section 3 issue.
He was asked to decide whether the conviction of a black man, Caesar Griffin, for “shooting with intent to kill” should be overturned because the judge presiding over his case was a Confederate.
In the Griffin case, Chase decided that Congress had to intervene—largely because he feared the precedent that would be set by overturning all Confederate verdicts.
Trump's lawyers now argue that the Griffin case shows that a state cannot use Section 3 as a means to disqualify someone.
In their brief, they argue that the Griffin case helps “validate the enforcement statutes of Congress as the exclusive means of enforcing Section 3.”
The argument is one of several they are making to claim that the Colorado Supreme Court overstepped the mark.
Justice Carlos Samour, who wrote a dissenting opinion in the Colorado ruling, wrote: “I find the decision in the Griffin case persuasive.”
Josh Blackman, a professor at South Texas College of Law who briefly filed an endorsement for Trump, agreed with Samour.
The Supreme Court will hear arguments on February 8 about whether Trump should be on the ballot in Colorado
He said relying on the Griffin case would give the U.S. Supreme Court a chance to resolve the matter without having to decide whether Jan. 6 was actually an insurrection.
“I think Griffin’s case is one way to do that,” he said.
However, other legal scholars have argued that none of Chase's rulings can be considered reliable because Chase was too influenced by his own political leanings and desires.
“Chief Justice Chase missed the mark,” wrote legal scholars William Baude and Michael Paulsen in an influential legal review article cited by NBC News.