DemDaily: Supreme Court Weighs Trump Ballot Battle

February 9, 2024

In a landmark day for the US Supreme Court and our nation, the high court on Thursday heard arguments in Trump v. Anderson -- the outcome of which will determine the course of the 2024 presidential campaign.

At issue is whether the Colorado Supreme Court erred in ordering that former President Donald Trump be barred from appearing on the state’s March 5 Republican primary ballot because of his role in inciting the January 6, 2021 insurrection at the United States Capitol.

The case centers on the interpretation of Section 3 of the 14th Amendment, known as the "insurrection or disqualification clause," a Civil War-era provision originally meant to prevent those in the Confederacy from holding state or federal office. While the 14th Amendment -- usually associated with civil rights and equal protection under the law -- is commonly challenged, Section 3 has been largely untested for 150 years.

14th Amendment, Section Three: “No person shall...hold any office, civil or military, under the United States, or under any State, who, having previously taken an 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."

Anderson v. Griswold was filed in State District Court in September 2023 by six Colorado residents and eligible Republican primary voters who claimed that Trump's attempts to subvert the 2020 election disqualify him from running in the state's presidential primary.

The plaintiffs, including 91-year-old former Republican Senate Majority Leader Norma Anderson, are represented by watchdog organization Citizens for Responsibility and Ethics in Washington (CREW).

In November 2023, the court agreed that Trump engaged in insurrection "by standard of preponderance of the evidence," but concluded that Section 3 does not apply to the presidency as it is not an “office…under the United States." Thus, the court denied the petition to bar Trump from the ballot.

Anderson and co-plaintiffs appealed to the Colorado Supreme Court which reversed the lower court's decision on December 19, finding that Trump had "incited insurrection" and disqualifying Trump from Colorado's primary ballot. It is the first time that a presidential candidate has been barred from running for office in a state based on the Fourteenth Amendment.

The court's ruling was initially stayed until January 4, 2024, the day before Colorado's deadline to print primary ballots, but it was indefinitely extended after SCOTUS agreed to take up the Colorado Republican Party's appeal.

Prominent constitutional scholars -- including from the conservative Federalist Society -- have weighed in, with most endorsing the interpretation that Trump's role in orchestrating a conspiracy to overturn the 2020 presidential election constitutes insurrection against the Constitution, “placing him squarely within the ambit of the disqualification clause.”

"The framers and ratifiers of the 14th Amendment...foresaw this moment in American history...Section 3 is about as pristine clear as any provision in our Constitution." - Conservative constitutional scholar Michael Luttig

Anderson is the most significant election case before the high court since Bush v. Gore in 2000, which delivered the presidency to George W. Bush the day after it was argued.

Thursday's oral arguments, which lasted more than two hours, were closed to the press, but the audio recording of the deliberations was dramatically broadcast by most major networks, intertwined with images of the jurists and lawyers.

The tone of questioning betrayed a hesitation by both conservative and liberal justices to directly confront the disqualification clause -- and the profound consequences of eliminating a candidate from the ballot with no democratic input from the voters.

Liberal Justice Elena Kagan and conservative Justice Amy Coney Barrett expressed concern over the power a single state has in determining which candidate belongs on a national election ballot. “Why should a single state have the ability to make this determination not only for their own citizens but also for the nation... it seems quite extraordinary,” said Kagan.

Biden appointee Justice Ketanji Brown Jackson questioned whether the case honors the intention of the 14th Amendment's authors: “They were listing people that were barred [from office by statute] and ‘president’ is not there. I guess that just makes me worry that maybe they weren’t focused on the president."

Conservative Chief Justice John Roberts said that if the Colorado decision is upheld, other states will proceed with disqualification proceedings of their own for either Democratic or Republican candidates. "And it will come down to just a handful of states that are going to decide the presidential election. That's a pretty daunting consequence," Roberts said.

Although Supreme Court decisions are normally delivered in the summer at the end of the court's term, lawyers for Anderson have asked for an expedited ruling by this Sunday, February 11 -- the day before Colorado's primary ballots are mailed.

Trump Attorney Jonathan Mitchell also argued that the insurrection clause only disqualifies Trump from holding office, not running for office. “Even if the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office, and even win election to office, and then see whether Congress lifts that disability after the election."

Disqualification lawsuits to keep Trump off the 2024 presidential ballot have been filed in 33 other states. 11 of those are pending final ruling, including Alaska, California, Maine, New Mexico, New Hampshire, North Carolina, South Carolina, Texas, Vermont, Virginia, Scotu and Wisconsin.

Similar legal challenges in Arizona, Connecticut, Delaware, Florida, Idaho, Illinois, Kansas, Louisiana, Massachusetts, Montana, New Jersey, Oklahoma, Pennsylvania, Utah, West Virginia and Wyoming have been dismissed, either voluntarily by plaintiffs or summarily by the states' supreme courts.

DemList will keep you informed.

DemDaily: The 2024 Presidential Calendar. The Update 2/5/24
DemDaily: Biden Kicks Off Primary Calendar 2/5/24
DemDaily: DemDaily: Red State, Blue State 1/31/24
DemDaily: Trump Dominates First In The Nation Caucus 1/16/24
DemDaily: Three Years Later. The Capitol Insurrection 1/9/24
DemDaily: Disqualified to Run? 9/12/24

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Kimberly Scott

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Sources: NBC, The Hill, New York Times, Oyez, US Constitution, Yahoo, CBC.Ca, Supreme Court, ScotusBlog

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