14th Amendment Challenge to Trump’s Disqualification in Colorado and Maine Heads to Supreme Court

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The Supreme Court is set to hear oral arguments this Thursday on whether Donald Trump’s presidential candidacy violates the insurrection clause in Section 3 of the 14th Amendment to the Constitution. This clause prohibits any person from holding public office if they participated in an “insurrection or rebellion” after taking an oath to support and defend the Constitution. Trump, the leading candidate for the Republican presidential nomination in 2024, has appealed to the Supreme Court to overturn the Colorado ruling and requests in other states to keep him off the ballot.

Only Colorado and Maine have applied the 14th Amendment to Trump, ruling that he is ineligible to appear on the ballot in the primaries. Both states hold their primaries on March 5, also known as ‘Super Tuesday’, when voters in more than a dozen states, including California and Texas, go to the polls. The Supreme Court, with a conservative majority that includes three Trump-nominated judges, has set aside 80 minutes for oral arguments on Thursday starting at 10:00 a.m., but that is expected to be extended.

The hearing comes just two days after an appeals court dealt a major legal setback to Trump, ruling that he does not have immunity from prosecution for acts he performed while in the White House. He also faces racketeering charges in Georgia for allegedly conspiring to alter election results in the southern state and charges in Florida for allegedly mishandling classified documents.

The 14th Amendment, ratified in 1868 after the Civil War, was intended to prevent supporters of the Confederacy—who defended slavery—from being elected to Congress or holding federal office. The provision has rarely been invoked in the past 150 years and has never before been applied to a presidential candidate. The text of the amendment reads: “No person shall… hold No officer, civil or military in the United States… who having previously taken an oath… as an officer of the United States… to support the Constitution of the United States, has participated in insurrection or rebellion against the same.” Only Congress can eliminate the disqualification by a two-thirds vote of both the House and the Senate. It does not specify who decides when someone has “engaged in insurrection” or how.

On January 6, as the House and Senate meeting in joint session at the Capitol prepared to certify Biden’s victory, Trump gave a powerful speech before thousands of followers in Washington urging them to march to the headquarters of Congress and fight “like demons.” The former president was impeached by the House of Representatives, with a Democratic majority, for inciting an insurrection, but was acquitted by the Senate.

A group of four Republican and two unaffiliated voters sued Colorado’s secretary of state to prevent Trump from appearing on the state’s GOP primary ballot, citing his efforts to overturn the results of the 2020 presidential election. Jason Murray is arguing on behalf of Republican voters who want Trump removed from the primary ballot. Murray is making his first argument before the Supreme Court, but he is not unknown to the justices. He spent a year on the court as a law clerk to Justice Elena Kagan, and previously clerked for Justice Neil Gorsuch when he was a federal appeals court judge in Denver. Colorado Attorney General Shannon Stevenson, representing the clerk Jena Griswold State, will also make her Supreme Court debut. Stevenson has been in her position for less than a year. Previously, he had been in private practice in Denver for 20 years.

Trump’s lawyers argue that Section 3 should not apply because the president is not technically an “official of the United States,” an argument that was rejected by the Colorado Supreme Court. However, the US Constitution refers to the “office” of the US president 20 times, according to the indictment. The former president’s lawyers claim that “the Court should also reverse because President Trump did not ‘engage in an insurrection.'” “President Trump never participated in or directed any of the unlawful conduct that occurred at the Capitol,” they said. The ruling in the Colorado case states that Trump’s words and actions “were the factual cause and a substantial contributing factor to the attack” and the First Amendment does not protect incitement. “The Court should quickly and decisively end these ballot disqualification efforts, which threaten to disenfranchise tens of millions of Americans,” his lawyers insist. They warned of “chaos and uproar” if other states “follow Colorado’s example and exclude the likely Republican presidential candidate from their ballots.”

Numerous scholars who have researched the history of Section 3 believe it applies to Trump, but several academics also disagree. In related developments, Maine’s Democratic secretary of state ruled that Trump was disqualified, a decision that is on hold while Trump appeals. A retired Republican judge from Illinois concluded that Section 3 applies to Trump. He recommended that the board keep Trump on the ballot anyway because the courts should make the final decision. Steven Schwinn, a constitutional law professor at the University of Illinois at Chicago, said the courts do not have much experience with Section 3 cases and “it is difficult to predict how different justices will approach the issue.” “That said, I anticipate that this court probably will not fully affirm the Colorado Supreme Court,” Schwinn commented. “I suspect that the majority of this court will not want to be perceived as taking away a candidate’s choice from a significant number of voters,” he said. “The most likely outcome for the court here, the one it is most likely to adopt, is that only Congress has the authority to disqualify to a candidate.”

Those who object to the decision of the Colorado Supreme Court agree that states cannot preventively exclude candidates, because they would be interfering with the authority of Congress. They argue that by allowing the application of Section 3 without authorization from Congress, candidates could face “abuse by state officials.”

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