The Supreme Court is anticipated to render its verdict shortly on whether Colorado should keep Donald Trump off its presidential ballot. With an overwhelming conservative majority comprising justices appointed by Trump himself, they should act quickly.
Thursday afternoon, the justices listened to arguments presented by attorneys representing voters who filed suit against Colorado as well as attorneys representing Donald Trump’s campaign.
The Supreme Court’s Role
This case has brought the Supreme Court into an often contentious political dispute; should they uphold Colorado’s ballot ruling it could force states to keep Donald Trump off their presidential primary ballots, potentially jeopardizing his campaign.
The justices’ questions to lawyers representing challengers emphasized their profound worries over a decision, and made clear they expect a quick resolution. Although 80 minutes has been set aside for arguments, they could go longer.
Much of the discussion at stake during this hearing focused on whether individual states had the authority to enforce Section 3’s requirements, with lawyers for Colorado voters contending they do not without congressional legislation granting such permission. Concerns among justices included democracy and whether permitting states to disqualify Donald Trump would allow state courts and elections officials to use this provision against candidates they don’t like for president.
The Case
Justices entered the case quickly, hastening briefing deadlines and setting an oral argument date within days of each other. A court decision should come out within just over one month.
Jonathan Mitchell, representing Donald Trump, quickly made an opening statement and faced off against questions from all nine justices of the U.S. Supreme Court. Next was Jason Murray of Colorado voters challenging Trump’s ballot eligibility.
Justice Elena Kagan strongly challenged the plaintiffs’ lawyers. She cautioned that permitting states to declare candidates ineligible could set an extremely dangerous precedent and asked why one state alone could make such a determination for all citizens within it and beyond its borders. Most questions by justices focused on technicalities related to Section 3, but avoided probing into January 6 attacks on Capitol Hill that precipitated Colorado’s lawsuit and similar ones elsewhere in the US.
The Court’s Decision
Court Justices appeared inclined to uphold Colorado’s state Supreme Court’s ruling removing Donald Trump from the ballot, particularly with respect to conservative justices who warned of Colorado setting an unsettling precedent that gives individual states extraordinary powers over national elections.
Justices grilled Jason Murray, representing the plaintiffs in this two-hour hearing on Thursday regarding whether it is correct to argue that states cannot review presidential candidates for potential insurrection under the Constitution. They pressed them along with former state Senator Norma Anderson about its implications and sought comment from them regarding what action could be taken as part of this case.
Clarence Thomas asked Murray whether his argument that Congress must first find insurrection before its constitutional insurrection ban kicks in applies to an incumbent president running for office. Other justices, including Elena Kagan and Sonia Sotomayor pressed Murray to consider how his arguments impacted on constitutional principles.
The Consequences
The justices appear to be striking a delicate balance between states’ rights to administer their elections and national uniformity. During oral arguments, multiple justices raised concerns about what an outcome favorable to Colorado voters might mean for future presidential elections across the nation.
Justice Elena Kagan and Ketanji Brown Jackson of the Colorado Supreme Court ruling were concerned that its uphold could give individual state courts unprecedented power to alter national election results. Samuel Alito and Brett Kavanagh of the conservative bench questioned Jason Murray of Voter Legal Services about how best to determine if someone engaged in insurrection.
Though it’s possible that enough Republican-leaning states could use their individual laws to exclude Trump from ballots and deny him an electoral college vote, that seems unlikely. A ruling in favor of Colorado voters could start unraveling democratic norms – something the justices should carefully consider before ruling on Thursday.
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