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In a Thursday hearing on an unprecedented elections case, the U.S. Supreme Court appeared skeptical of the argument that former President Donald Trump could be removed from state primary ballots because of his involvement in the Jan. 6, 2021, attack on the U.S. Capitol following his 2020 election loss.
Liberal and conservative justices alike expressed their doubts, with Justice Elena Kagan saying that the “question that you have to confront is why a single state gets to decide who can be president of the United States.”
The case hinges on whether Colorado’s top court rightfully removed Trump from its ballot after finding that his actions related to Jan. 6 amounted to engaging in an insurrection. The justices voiced concerns that if they allowed Colorado’s decision to stand, it would open a Pandora’s box of states disqualifying people from ballots whenever they see fit.
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Several justices pointed out that Trump has not been criminally convicted of committing an insurrection, and that he would be barred from running for office if he had. Trump’s lawyer somewhat disagreed, saying he still would be protected from conviction by presidential immunity, but concurred that a convicted insurrectionist could not take office.
Justice Brett Kavanuagh questioned why a post-Civil War provision of the Constitution that would bar insurrectionists from office — known as Section 3 — was being applied in this case, given there was already a legal way to ban them.
Asked whether removing Trump from the ballot was “disenfranchising voters,” the lawyer representing Colorado voters argued that “safeguarding democracy” goes beyond allowing people to vote. “The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance,” attorney Jason Murray said.
The former president called the proceedings “a beautiful thing to watch in many respects,” telling reporters at his Mar-a-Lago club, “I hope that democracy in this country will continue.”
Another sticking point of the hearing was whether Jan. 6 even qualified as an insurrection. Trump’s team said it was not an insurrection because there was no “organized, concerted effort to overthrow the government of the United States through violence.”
“This was a riot. It was not an insurrection,” Trump attorney Jonathan Mitchell said. “The events were shameful, criminal, violent, all of those things, but did not qualify as an insurrection as that term is used in Section 3.”
A significant portion of the hearing was spent debating whether the provision of the Constitution that Colorado’s top court used to remove Trump was applied correctly. The justices wanted to know if the provision could be used to remove a candidate from the ballot or if it could only be used to ban someone from office. Trump’s team also argued that Section 3 should not apply to him because it doesn’t specifically mention presidents.
The former president’s campaign fundraised off of the proceedings, sending an email that read: “They don’t just want to remove me from the ballot - THEY WANT TO ERASE YOUR RIGHT TO VOTE FOR ME! But what they don’t know is this: YOU WON’T LET THAT HAPPEN!”
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The court’s ruling could have sweeping implications as primary voting begins. Colorado’s ballots for the March 5 primary currently include Trump’s name, but the court could determine that he can’t legally run. Justice Samuel Alito pointed out that if Colorado’s ruling stands, other states could make their own decisions on whether to allow Trump on the ballot, potentially creating a confusing amalgamation of laws across the nation.
This politically-charged decision will come at a difficult time for the Supreme Court, optics-wise. Favorable views of the court are at a historic low, with 54% of Americans reporting an unfavorable view.
