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Justices Doubtful on Disqualifying Trump from 2024 Ballot

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Clear Facts

  • Supreme Court justices expressed doubts about allowing a single state to remove former President Donald Trump from the 2024 election ballot.
  • Justices questioned the attorney representing Colorado voters advocating for Trump’s disqualification, with Justice Elena Kagan asking why a single state gets to decide who gets to be the president of the United States.
  • Trump’s attorney argued that Section 3 of the 14th Amendment is only enforceable through legislation by Congress, pointing to a 1869 opinion by Chief Justice Salmon P. Chase.

The Supreme Court seemed unlikely Thursday to uphold a Colorado Supreme Court ruling disqualifying former President Donald Trump from the state’s ballot. “Your position has the effect of disenfranchising voters to a significant degree,” Justice Brett Kavanaugh told the attorney representing Colorado voters advocating for Trump’s disqualification. Justice Elena Kagan posed one crucial question: Why does a single state get to decide who gets to be the president of the United States?

Nearly every Supreme Court justice expressed reservations Thursday about allowing a single state to remove former President Donald Trump from the 2024 election ballot.

The justices heard oral arguments Thursday for Trump’s appeal of the Colorado Supreme Court’s December decision to disqualify him from the ballot under Section 3 of the 14th Amendment. The practical consequences of the decision, along with the historical context of the Civil-war era amendment, left a strong majority seemingly skeptical about letting the ruling stand.

Colorado voters, with the left-wing donor backed group Citizens for Responsibility and Ethics (CREW), initially sued in September to remove Trump from the state’s ballot. They argued that his role in “recruiting, inciting and encouraging a violent mob” on Jan. 6, 2021 makes him ineligible under the Civil-war era “insurrectionist ban.”

Justice Elena Kagan boiled the problem with the Colorado voter’s position down to one question: Why does a single state get to decide who gets to be the president of the United States?

With this question, followed by others involving what would happen if another state’s court developed an alternate factual record or came to a different conclusion about whether Trump engaged in an insurrection, the justices left Jason Murray, the attorney for the Colorado voters, with little ground to stand on.

Chief Justice John Roberts urged Murray to consider the “plain consequences” of his position and how it might be used to advance partisan goals on the other side of the aisle.

“In very quick order, I would expect — although my predictions have never been correct — I would expect that, you know, a goodly number of states will say, whoever the Democratic candidate is, you’re off the ballot. And others for the Republican candidate, you’re off the ballot,” Roberts said. “And it’ll come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.”

“Your position has the effect of disenfranchising voters to a significant degree,” Justice Brett Kavanaugh told Murray.

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The justices took aim at Murray’s lack of historical grounding. “There were people who felt very strongly about retaliating against the South, the radical Republicans, but they did not think about authorizing the South to disqualify national candidates,” Justice Clarence Thomas said. “Do you have any examples of this?”

Murray replied that there aren’t examples because “elections worked differently back then.”

Justice Ketanji Brown Jackson likewise pushed back on Murray’s assertion that there is “no ambiguity” in Section 3.

“With having a list and not having ‘president’ in it, with having a history that suggests that they were focused on local concerns in the south, with this conversation where the legislators actually discussed what looked like an ambiguity, you’re saying there is no ambiguity in Section 3?” she asked.

The justices did seem to struggle with one argument raised by Trump’s attorney, Jonathan Mitchell — that Section 3 of the 14th Amendment does not apply to Trump because he is not an “Officer of the United States.”

Justice Sonia Sotomayor questioned whether it was a “gerrymandered rule” that was “designed to benefit only your client.”

A lower court Colorado judge previously declined to rule against Trump because he was not an “officer of the United States.”

The justices appeared inclined to favor a different argument: that Section 3 is not self-executing. Or, at least, that states do not have the authority to enforce it against candidates for federal office.

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Trump’s attorney pointed to a 1869 opinion by Chief Justice Salmon P. Chase, Griffin’s Case, which held that Section 3 is only enforceable through legislation by Congress.

Kavanaugh noted that Section 3 has been dormant for over 150 years, in large part due to Griffin’s Case. “I think the reason it’s been dormant is because there’s been a settled understanding that Chief Justice Chase, even if not right in every detail, was essentially right, and the branches of the government have acted under that settled understanding for 155 years,” he said.

Justices Samuel Alito and Neil Gorsuch posed questions about difficulties that could arise if a president is disqualified “from the moment” he engages in insurrection, as Murray had argued is the case, asking whether military officers could refuse to take orders from that point on.

“If he is, in fact, disqualified, from that moment, why would anybody have to obey a direction from him?” Gorsuch asked.

Harvard Law School professor emeritus Alan Dershowitz noted after oral arguments that Trump will win “despite his lawyer’s argument, not because of it.”

“None of the lawyers adequately addressed the issues of concern to the justices,” he wrote on X. “The justices themselves made the best arguments for both sides.”

Jonathan Turley likewise said on X that advocates for disqualifying Trump “may have expected a cold reception, but this was perfectly glacial.”

“Notably, some of the toughest and most skeptical questions came from the left of the Court,” he said.

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Clear Thoughts (op-ed)

The Supreme Court’s questioning of Colorado voters’ attempt to remove former President Donald Trump from the 2024 election ballot reveals a crucial issue: should a single state possess the power to decide who becomes the president of the United States?

Justice Elena Kagan’s query encapsulates the core concern, and the justices’ scrutiny of the attorney representing the Colorado voters highlighted the potential consequences of such a precedent.

Chief Justice John Roberts illustrated the potential for partisan manipulation by suggesting that both Democratic and Republican candidates could be removed from ballots by opposing states, ultimately leaving only a few states to determine the election outcome. Justice Brett Kavanaugh emphasized the disenfranchisement of voters this position could cause.

With a lack of historical grounding and potential for adverse consequences, the justices’ skepticism towards the Colorado voters’ argument is well-founded. Upholding the Colorado Supreme Court’s ruling could create a dangerous precedent, undermining the democratic process and empowering individual states to manipulate election outcomes.

Let us know what you think, please share your thoughts in the comments below.

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4 Comments

4 Comments

  1. Jeremy

    February 10, 2024 at 9:11 pm

    Under the constitution, Congress may disqualify a presidential candidate for inciting insurrection. That being said, neither Colorado Supreme Court, the Maine Secretary of State, nor any other state agency or officer has that authority. Further more, President Trump has not even been charged with insurrection, let alone tried and convicted. If the Democrats thought there was a snowflake’s chance in hell that the trial would even hurt him, they would most definitely charge him.

  2. Anne

    February 15, 2024 at 3:42 am

    The Left regards Trump as an existential threat and they are just trying to save themselves. Trump just wants to save the country. If I were a Democrat, I would be so ashamed.

  3. RICHARD

    February 15, 2024 at 11:22 am

    WE ALL KNOW TRUMP IS INNOCENT OF ALL THESE BOGUS CHARGES.THE LYING CORRUPT DEMOCRATS SHOULD BE ASHAMED FOR THEIR LAUGHING CHARADE. JUST TO SAVE THIS DEMENTED INSTALLED PRESIDENT WHO IS NOTHING ELLS BUT OBAMAS PUPPET. HOW CAN WE THE AMERICAN PEOPLE LET THIS COMMUNIST OBAMA DESTROY OUR NATION? HE TRIED FOR 8 YEARS, NOW ANOTHER TERM PULLING BIDENS STRINGS. AFTER THIS COMMIE OBAMA WOULD LOVE NOTHING MORE THEN INSTALL MICHELLE OBAMA HIS WIFE WHO HATES AMERICA AS MUCH AS OBAMA. PLUS SHE IS CERTAINLY NOT QUALIFIED TO GOVERN OUR COUNTRY, SHE COULD NOT EVEN MANAGE SCHOOL LUNCHES THAT KIDS WOULD NOT EVEN EAT. GOD HELP US. THE OBAMAS GAVE US NOTHING BUT RACE HATE, DIVIDED OUR COUNTRY. BESIDES THEY ARE NOT LONGER RELEVANT IN OUR COUNTRY. BUT THEY ARE LIKE A VERY BAD SMELL, THAT LINGERS ON FOREVER. JUST LIKE THE CLINTONS AND THE BIDENS. TIME FOR A BREATH OF FRESH AIR, TRUMP 2024 TO SAVE OUR GREAT COUNTRY.

  4. Old wolf

    February 15, 2024 at 11:50 am

    By trying to stop Trump only shows just how corrupt the far left democrats and their judge’s really are, and how far their willing to go to fix the so called elections. It’s all a scam, no matter what you call it, it’s still voters fraud like in 2020. If the far left Communist democrats get away with this. then guessing it’s time for the people to fix the wrong being done. cause the people can’t depend of our law officials to do the job they took a oath to up hold. If this doesn’t tell you what your seeing is really happening then your a lost soul. Or a fool for beliving the lies your being told while your doubling what your seeing for yourself. Either way their trying to take our country and way of life down to their level. Are you really willing to sink that low just for a lost cause ??? Better wake up befor its to late. Cause from what I see, its coming. Seeing I’d beliving

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