Colorado BallotSupreme Court Hearing Case on Trump’s Eligibility for Another Term
"In a momentous argument, the justices will consider whether the former president’s attempts to subvert the 2020 election disqualify him from again holding office.
reporting from the Supreme Court
The wife of one of the Colorado petitioners' lawyers got in line at 4:30 a.m. Thursday, hoping to snag a ticket. “I took my chances,” said Lisa Kitsmiller, 65, of Denver. But no such luck. Her husband, Robert Kitsmiller, entered the court house with the other lawyers involved in the case. By the time oral arguments began, Ms. Kitsmiller was still waiting outside in the public line with about 100 other people.
Justice Alito raises the consequences of interpreting the law in the way the Colorado Supreme Court did. He and Jonathan Mitchell, one of Trump’s attorneys, discuss the possibility that different courts in different states might come to different conclusions about whether Trump’s actions made him an insurrectionist.
Part of the back-and-forth that’s happening now concerns whether, by deeming Trump ineligible without congressional action to enforce the 14th Amendment, the Colorado secretary of state would be adding an “additional qualification” for office to the basic qualifications outlined in the Constitution, like being a natural-born citizen and being at least 35.
has reported on the Supreme Court since 2008
Former President Donald J. Trump has argued that states may not enforce Section 3 of the 14th Amendment, the provision at issue in Thursday’s arguments, unless Congress first enacts legislation setting out the required procedures. In support of this assertion, he points to Section 5 of the amendment, which says that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
The Colorado Supreme Court, in barring Mr. Trump from the state’s primary ballot, said Section 5 gives Congress the option of enacting legislation enforcing Section 3 and the 14th Amendment’s other provisions. But that court added that such legislation is not required to give Section 3 practical effect. It noted that the Supreme Court has said or assumed that other provisions of the 14th Amendment and other amendments adopted after the Civil War are “self-executing,” meaning they have immediate force and do not require legislation to give them teeth.
reporting from the Supreme Court
Justice Sotomayor is pressing Jonathan Mitchell, an attorney for Trump, on his interpretation of the 14th Amendment. She is critical of Mitchell’s argument and finally breaks in: “Can we get to the issue?”
Justice Sotomayor points out that there have been numerous examples of states relying on Section 3 to disqualify candidates for state office, even though there is no congressional statute telling states they can do that.
The justices’ questions — and Mitchell’s answers — so far have focused on technical provisions of the 14th amendment. We haven’t yet heard any discussion about the factual question of whether Trump’s role in the Jan. 6, 2021 attack on the Capitol counts as an act of insurrection.
Speaking to reporters yesterday, lawyers for the Colorado voters challenging Trump’s eligibility said they had been struck by the fact that, in their briefings, Trump’s lawyers had largely abandoned arguments about whether he “engaged in insurrection” in favor of arguments about the scope of the 14th Amendment.
Jonathan Mitchell, an attorney for Trump, is arguing that, even if a candidate openly admitted to engaging in insurrection, a secretary of state would have no authority to remove them from the ballot. Section 3, he says, “still allows the candidate to run for office” and “then see whether Congress lifts that disability” between the election and inauguration.
Reporting from Washington
The case before the Supreme Court on Thursday hinges in part on whether Section 3 of the 14th Amendment applies to presidents.
Colorado’s top court ruled in December that former President Donald J. Trump is ineligible to be president again and cannot appear on the ballot under the provision, or the disqualification clause. The provision bars people from holding office if they participated in an insurrection after having sworn to uphold the Constitution in various positions, including as an “officer of the United States.”
Justice Clarence Thomas, as the longest-serving member of the court, asks the first question. He raises the issue of whether Section 3 of the 14th Amendment is “self-executing” — that is, whether it can be enforced on its own, or would need a statute from Congress to have legal effect. The court has previously held that other parts of the 14th Amendment need no such statutes.
reporting from the Supreme Court
The media interest in this case is so great that more than 50 journalists are sitting in overflow seats inside the courtroom, craning from behind marble columns and heavy red curtains to glimpse the justices.
Jonathan Mitchell, an attorney for Trump, is emphasizing two arguments: First, that the president is not an “officer of the United States” and so isn’t included in Section 3 of the 14th Amendment. Second, that disqualifying Trump under the amendment would require congressional action.
The first argument Mr. Mitchell put forward — that the disqualification clause does not apply to Mr. Trump because he only took an oath to support the Constitution as president, and under their view presidents are not “officers of the United States” — was championed by an idiosyncratic law professor. Here's an article on the professor, Seth Barrett Tillman.
The arguments are beginning. Jonathan Mitchell, an attorney for Donald J. Trump, is starting his argument.
reporting from the Supreme Court
When the Supreme Court considers on Thursday whether former President Donald J. Trump should appear on the primary ballot in Colorado, two former law clerks with vastly different ideologies will square off before the justices.
Colorado’s solicitor general will also be arguing before the court.
The night before the Supreme Court was set to hear arguments in a case that will shape the outcome of the presidential election, Dylan Basescu, a 24-year-old law student, read aloud from one of the briefs filed in the case, while another person in line to secure seats inside the courtroom listened intently.
Discussions about the arguments are common topics of conversation in these situations, Mr. Basescu said.
has reported on the Supreme Court since 2008
Before the arguments start, the court will announce one or more opinions from the bench, starting at 10 a.m. The court does not provide audio of such announcements, meaning that there will be silence on the audio feed for several minutes before it is turned on for the arguments.
reporting from the Supreme Court
Outside the Supreme Court, protestors held signs saying, “Trump is a traitor” and “do not let Trump get away with insurrection.” Two Trump supporters paced nearby, occasionally saying, “innocent until proven guilty” or hissing, “Antifa” at protestors. About 100 members of the public waited in line for seats, hoping some might become available.
has reported on the Supreme Court since 2008
“I’m not happy with the Supreme Court,” President Donald J. Trump said on Jan. 6, 2021. “They love to rule against me.”
His assessment of the court, in a speech delivered outside the White House urging his supporters to march on the Capitol, had a substantial element of truth in it. A fundamentally conservative court, with a six-justice majority of Republican appointees that includes three named by Mr. Trump himself, has not been particularly receptive to his arguments.
Trump already has given an interview to America’s Voice in which he forecast that the Supreme Court, three of whose justices he appointed, will vote in his favor in the Colorado case.
Trump also just did an interview on “The John Fredericks Show,” a right-wing radio program, in which he gave a muddled, inaccurate description of the Colorado case, saying “a rogue person working in Colorado” is trying “to take the election on by that person’s self.” The Colorado Supreme Court has seven members, and four of them ruled that he was ineligible.
Ruling him ineligible “would be a very terrible thing to do,” Trump said in the “John Fredericks Show” interview. “It’s about the vote, it’s about our Constitution, it’s about so many different things, and every one of them fall into my favor. It’s a terrible thing, I think it’s terrible, but it’s important that a very powerful decision be made on this. You can’t take the votes away from the people.”
Trump adviser Jason Miller has been dispatched to the Supreme Court oral arguments, apparently to listen in with Trump traveling to Nevada later today.
reporting from the Supreme Court
A crowd has gathered in front of the Supreme Court before oral arguments begin in the Colorado ballot case. Television crews have set up live shots. A group of anti-Trump demonstrators has unfurled an enormous banner that reads, “Remove Trump.”
Lazaro Gamio, Mitch Smith and
Formal challenges to Donald J. Trump’s presidential candidacy have been filed in at least 35 states, according to a New York Times review of court records and other documents.
Mr. Trump was disqualified from the primary ballots in Colorado and Maine, but he has appealed.
The arguments are scheduled to begin shortly after 10 a.m. The justices agreed to hear this case after the Colorado Supreme Court ruled in December that Donald Trump had engaged in insurrection and that Section 3 of the 14th Amendment applied to him, thus making him ineligible to be president again.
Jack Healy, Anna Betts, Mike Baker and
As the top elections official in Washington State, Steve Hobbs says he is troubled by the threat former President Donald J. Trump poses to democracy and fears the prospect of his return to power. But he also worries that the decisions in Maine and Colorado to bar Mr. Trump from presidential primary ballots there could backfire, further eroding Americans’ fraying faith in U.S. elections.
“Removing him from the ballot would, on its face value, seem very anti-democratic,” said Mr. Hobbs, a Democrat who is in his first term as secretary of state. Then he added a critical caveat: “But so is trying to overthrow your country.”
NEWS ANALYSIS
It has been obvious for months that politics and the law were going to bump into each other in the 2024 campaign, given the double role that former President Donald J. Trump has been playing as a criminal defendant and leading Republican candidate.
But in a way that few expected, that awkward bump has turned into a head-on collision. It now seems clear that the courts — especially the Supreme Court — could dramatically shape the contours of the election.
has reported on the Supreme Court since 2008
The Supreme Court is hearing arguments on Thursday morning in an extraordinary case that could alter the course of the presidential election by deciding whether former President Donald J. Trump’s conduct in trying to subvert the 2020 race made him ineligible to hold office again.
Not since Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush, has the Supreme Court assumed such a direct role in the outcome of a presidential contest.
The sweep of the court’s ruling is likely to be broad. It will probably resolve not only whether Mr. Trump may appear on the Colorado primary ballot, but it will also most likely determine his eligibility to run in the general election and to hold office at all.
The case is just one of several involving or affecting Mr. Trump on the court’s docket or approaching it.
Here’s what else to know:
Thursday’s case arose from a December ruling from the Colorado Supreme Court disqualifying Mr. Trump from the state’s Republican primary ballot based on Section 3 of the 14th Amendment. The provision was adopted after the Civil War to bar insurrectionists who had taken an oath to support the Constitution from holding office.
The provision says: “No person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” It adds, “But Congress may by a vote of two-thirds of each House, remove such disability.”
Mr. Trump has attacked the Colorado court’s ruling on at least a half-dozen grounds, though their unifying theme is that the election should be decided by the voters. “The court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots,” Mr. Trump’s brief said.
The six Colorado voters who prevailed in the case in that state urged the justices not to give in to what they suggested were threats of political violence from a candidate they said had demonstrated a propensity for it. “The thrust of Trump’s position is less legal than it is political,” the voters’ brief said. “He not-so-subtly threatens ‘bedlam’ if he is not on the ballot. But we already saw the ‘bedlam’ Trump unleashed when he was on the ballot and lost.”
Mr. Trump’s primary legal argument in the case, Trump v. Anderson, No. 23-719, is that Section 3 does not apply to himbecause the president is not among the officials covered by the provision. “The president is not an ‘officer of the United States’ as that term is used in the Constitution,” his brief said.
In addition, the brief argued, “Section 3 applies only to those who took an oath to ‘support’ the Constitution of the United States.” But, it continued, “the president swears a different oath set forth in Article II, in which he promises to ‘preserve, protect and defend the Constitution of the United States’ — and in which the word ‘support’ is nowhere to be found.”
Along similar lines, the brief also said that the presidency was not one of the offices from which oath-breaking officials were barred. “To accept the Colorado Supreme Court’s assertion that Section 3 includes the presidency,” the brief said, “one must conclude that the drafters decided to bury the most visible and prominent national office in a catchall term that includes low-ranking military officers, while choosing to explicitly mention presidential electors. This reading defies common sense.”
The brief also said that Section 3 disqualified people subject to it from holding office — not from seeking it. If the candidate were elected, the brief said, Congress could remove that disqualification before the candidate’s term began."
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