The Supreme Court began hearing arguments Thursday in a case that will decide whether former President Donald Trump can be barred from voting in Colorado in 2024, in a matter that could impact other states.
Trump has called the Colorado decision a violation of his rights as a candidate and is preparing to take a stand on events in Florida and Nevada. Unlike some of his other high-profile cases, he chose not to attend in person. It was the Supreme Court's first intervention in 2024, in an election cycle in which lower courts have already played a prominent role.
Jason Murray is representing the case of the Colorado voters who filed the lawsuit. Texas attorney Jonathan Mitchell is arguing Trump's case before the 6-3 conservative court.
First up was Mitchell, who received an early inquiry from Chief Justice John Roberts, who wanted to know if someone could stand up as secretary of state and say they wanted to run for office and admit, “I took part in an insurrection.” and I want that to be on the ballot.'
According to Mitchell, the state official could not bar the person — and it would be up to Congress to decide by vote whether to grant a waiver.
Section 3 initially only prohibits an insurgent from holding office,” he said.
“There are a number of examples of states relying on Section 3 to disqualify insurgents from holding state office,” argued Justice Sonia Sotomayor.
Justice Samuel Alito asked a question that suggested he doubted whether Congress could even pass laws that would prohibit insurrectionists from running for office, since that is not among the Constitution's qualifications for officeholders.
On Thursday, protesters gathered outside the Supreme Court as Trump's Colorado case was heard before the Supreme Court
“Section 3 relates to holding office, not running for office,” he said. “Wouldn’t that be an additional qualification for running for president?” Alito asked.
“How can Section 3 be enforced as a whole?” For someone out there to be able to say, “Yes, there was a former president who participated in, led or participated in an insurrection… How can this enforcement be done as a whole?” asked Justice Elena Kagan.
MITchell responded that it was up to Congress to act.
That was just part of the small details examined by the judges. Another question is whether the incumbent president is one of those whose participation in the insurrection would disqualify him from holding office.
Judge Ketanji Brown Jackson asked Mitchell: “Are you arguing: the office of president should not be considered one of the prohibited offices?” When Mitchell replied that it was not, Brown asked him: “Why?” It seems to me so , as if you had a list and the president wasn't on it.” The list mentioned in the text lists offices including senators, representatives and even presidential electors.
The justices argued with Mitchell over the Griffin case, in which a black defendant, Caesar Griffin, argued that his conviction for “shooting with intent to kill” should be overturned because the judge overseeing the case was a Confederate.
Trump was declared ineligible to appear on the ballot in Colorado on December 19, and his appeal of the state Supreme Court's decision will be heard on Thursday.
The decision marked the first time in history that Section 3 of the 14th Amendment was used to disqualify a presidential candidate. The Civil War-era rule states that people who participate in an insurrection are ineligible for office.
Supreme Court justices will hear arguments from both sides on whether Trump can be kept from the vote.
The highest court could even decide whether the Jan. 6 insurrection was an insurrection, when a mob stormed the U.S. Capitol to protest the election in which Joe Biden defeated Trump in 2020.
Protesters gather outside the U.S. Supreme Court on the day of the hearing
The Colorado court ruled that Trump participated in an “insurrection.”
The US Supreme Court is expected to consider whether Donald Trump should be barred from running for president and participating in the 2024 election in Colorado
Supreme Court justices (pictured) will hear arguments from both sides over whether Trump should not be allowed to run for president again and be barred from the election
They could govern even if the Jan. 6 insurrection was an insurrection, when a mob stormed the U.S. Capitol to protest the election
The Supreme Court will decide whether Trump should be removed from the ballot in Colorado and whether similar attempts are allowed in other states.
The 77-year-old Republican politician is likely the front-runner to challenge the 81-year-old Biden in the upcoming general presidential election in November.
His case is progressing much faster than usual in scheduling arguments and there is pressure to make a decision before March 5. Then voters in 15 states, including Colorado, cast their ballots in the Republican primaries.
Trump's name is currently on the ballot in Colorado before the Supreme Court. Maine also considered removing Trump from its ballot, but that move was also put on hold.
It is based on a Civil War-era constitutional amendment that bars anyone from holding federal office who has “participated in insurrection or rebellion.” However, this has never been used to disqualify a candidate for president.
The 14th Amendment has been around since 1868, but the Supreme Court has never considered Section 3, the so-called Insurrection Clause.
Both sides point to historical evidence to support their interpretation of the provision, including the way it was interpreted at the time it was adopted.
The lawyers are referring to arguments made 150 years ago by Salmon Chase, a member of Abraham Lincoln's cabinet who appointed Lincoln to the Supreme Court in 1864.
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 – barring Davis from holding 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.
The Republican politician, 77, is likely the front-runner to challenge Joe Biden, 81, in the upcoming presidential election in November
His case is progressing much faster than usual in terms of scheduling hearings, and there is pressure for a Supreme Court decision to be made before March 5
The 14th Amendment has been around since 1868, but the Supreme Court has never considered Section 3, the so-called Insurrection Clause. Pictured are the Capitol riots on January 6th
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. They claim that Trump's behavior at the time of January 6th did not constitute insurrection.
The Colorado Supreme Court acknowledged that it was aware of the implications of its December ruling.
Salmon Chase was the Republican governor of Ohio before being appointed to Lincoln's cabinet. Lincoln then appointed him to the Supreme Court
The Supreme Court could also decide another Trump case after a federal appeals court rejected his claim of presidential immunity
It was ruled that he could be prosecuted for conspiring to overturn the 2020 election
“We are also conscious of our solemn duty to apply the law without fear or favor and without allowing ourselves to be influenced by public reaction to the decisions the law requires us to make,” the judges said.
While Trump's lawyers claimed this “unconstitutionally disenfranchised millions of voters in Colorado” and could disenfranchise millions more across the US.
The former president's claims were also supported by the top judicial officials of 27 states.
They said the ruling in Colorado would lead to “widespread chaos.” The attorneys general wrote, “Most obviously, it causes confusion in an election cycle that is just weeks away.”
“Furthermore, it confuses the respective roles of Congress, the states and the courts.”
Trump is not expected to attend the hearing to hear arguments on Thursday.
The Supreme Court could also decide another Trump case after a federal appeals court rejected his claim of presidential immunity.
It was ruled that he could be prosecuted for conspiring to overturn the 2020 election. There is a deadline of Monday to get the Supreme Court to stay this ruling.