This story by Chase Woodruff appeared on Colorado Newsline on February 8, 2024.
An “unmanageable situation.” A “pretty daunting consequence.” A “troubling potential disuniformity.”
Although the justices of the U.S. Supreme Court differed in the words they chose to describe it, they were largely united in using their questions during oral arguments Thursday to fret over the potential repercussions of upholding the Colorado Supreme Court’s historic decision to bar former President Donald Trump from the state’s primary ballot under a Civil War-era insurrection clause.
The case began last year as a lawsuit filed by six Republican and unaffiliated voters against Trump and Colorado Secretary of State Jena Griswold. Backed by the liberal nonprofit Citizens for Responsibility and Ethics in Washington and armed with a legal theory endorsed by a handful of prominent legal scholars, the plaintiffs argued that Trump’s actions in relation to the Jan. 6 attack on the U.S. Capitol disqualify him from office under the 14th Amendment to the Constitution. Section 3 of the amendment prohibits someone who took an oath to support the Constitution and then “engaged in insurrection” from holding office again.
Though the clause has been invoked in only a small number of cases in the last 150 years, a challenge brought by CREW successfully led to the 2022 removal of a county commissioner in New Mexico who had participated in the events of Jan. 6. Colorado was singled out by CREW as a “good venue” for a challenge against Trump’s candidacy because of provisions in its election code that explicitly bar candidates who are ineligible to assume office from appearing on the ballot.
A 4-3 majority of the Colorado Supreme Court, writing that it was “cognizant that we travel in uncharted territory,” ruled on December 19 that Trump was ineligible, though it stayed its decision pending a highly anticipated U.S. Supreme Court appeal.
“We are here because, for the first time since the War of 1812, our nation’s Capitol came under violent assault,” Jason Murray, an attorney representing the plaintiffs, told the court during Thursday’s oral arguments. “For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power.”
Very little of Thursday’s two-hour hearing, however, was devoted to the specifics of what transpired on Jan. 6, 2021. Justices instead focused at length on two key legal issues raised by Trump in his defense: the question of whether Section 3 can be enforced by a state in the absence of legislation from Congress, as well as a theory holding that the clause’s reference to “officer(s) of the United States” doesn’t include the president.
Griswold, a Democrat and outspoken Trump critic, took no position on Trump’s eligibility during trial proceedings last year, but has since said the Colorado Supreme Court “got it right,” and formally urged the U.S. Supreme Court to affirm the decision.
“We’ll follow the Supreme Court’s decision. What their decision will be, we can’t say at this point,” Griswold said in an interview following the hearing. “I think it would be a dangerous and sad day for the United States if Trump’s arguments were upheld.”
‘Pervasive national interest’
Echoing the views expressed by many commentators and Republican state officials in the weeks since the Colorado decision, members of the court — where Republican-appointed justices hold a 6-3 majority — raised the specter of a series of retaliatory disqualifications and a chaotic patchwork of standards at the state level if the ruling is affirmed.
“If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side, and some of those will succeed,” Chief Justice John Roberts said. “I would expect that, you know, a goodly number of states will say, whoever the Democratic candidate is, you’re off the ballot. And others, for the Republican candidate, you’re off the ballot. It’ll come down to just a handful of states that are going to decide the presidential election.”
Justice Elena Kagan, a member of the court’s liberal minority, appeared to agree, referring to the court’s previous recognition of a “pervasive national interest in the selection of candidates for national office.”
“It’s a broader principle about who has power over certain things in our federal system,” Kagan said. “There are certain national questions where states are not the repository of authority… What’s a state doing, deciding who other (states’) citizens get to vote for for president?”
Trump himself addressed the ballot case in a brief appearance Thursday morning outside his Mar-a-Lago resort in Palm Beach, Florida.
“It’s unfortunate that we have to go through a thing like that,” Trump said. “I consider it to be more election interference by the Democrats.”
Alongside oral arguments by Murray and Trump attorney Jonathan Mitchell, Colorado Solicitor General Shannon Stevenson briefly answered questions on Griswold’s behalf during Thursday’s hearing, telling the court that Colorado’s election laws had worked as intended.
The evidentiary record used by the Colorado Supreme Court to determine that Trump had engaged in insurrection — including hundreds of pages of testimony and video footage collected by the select U.S. House committee that investigated the Jan. 6 attack — was produced during a five-day trial in Denver District Court beginning October 30.
“Nothing in the Constitution strips the states of their power to direct presidential elections in this way,” Stevenson said. “This case was handled capably and efficiently by the Colorado courts under a process that we have used to decide ballot challenges for more than a century.”
Although the Colorado Supreme Court’s decision thrust the Centennial State into the national spotlight, few prominent Colorado Democrats have eagerly embraced the ruling.
“I think we have to beat Donald Trump, if he’s the Republican nominee, in an election,” Governor Jared Polis said in response to questions about the case in a Fox Business interview last month.
In a statement Thursday, Colorado Attorney General Phil Weiser did not refer directly to Trump or the insurrection clause but called on the court to “uphold Colorado’s election laws and our state’s right to exclude from the ballot any candidate who is ineligible for the office.”
Norma Anderson, the 91-year-old lead plaintiff in the Colorado case, is a former Republican Colorado House speaker. She was present along with other plaintiffs in the Supreme Court chambers on Thursday, and said afterwards that the justices were “hard to read.”
“I think it’s 50-50,” Anderson said. “They were very inquisitive. I think what they were trying to figure out is, ‘Is this really my job to do?’”
Among the hundreds of people present in the court’s crowded chambers Thursday were Carlos Samour, a Colorado Supreme Court justice who wrote a withering dissent from the majority’s ruling; Gerard Magliocca, a scholar of 19th-century constitutional law who provided expert testimony on Section 3 during the Denver trial; Seth Barrett Tillman, a conservative scholar who helped popularize the theory that the president is not an “officer of the United States”; and Dave Williams, the chair of the Colorado Republican Party.
Williams, a Trump loyalist who denies the legitimacy of the 2020 election, said in an interview that he was confident the court would rule in Trump’s favor, regardless of the grounds on which it bases its decision.
“I guess I don’t have a specific way for them to resolve it,” Williams said. “Ultimately my interest is in ensuring people can vote for Donald Trump. However they get there makes no difference to me.”
The nation’s highest court has never directly weighed in on the application of Section 3, and the long dormancy of the clause has given the justices little recent case law from which to draw.
Much of the technical legal analysis in Thursday’s oral arguments concerned an 1869 ruling known simply as Griffin’s case, which arose when a Virginia man challenged his criminal conviction on the grounds that the judge who oversaw his trial should have been removed from office under the 14th Amendment, ratified the previous year.
Supreme Court Chief Justice Salmon P. Chase, acting as a lower-court judge while “riding circuit,” sided against the petitioner, ruling that disqualified officeholders weren’t removed “by the direct and immediate effect” of Section 3, but that “legislation by congress is necessary to give effect to the prohibition, by providing for such removal.” A year later, Congress passed the Enforcement Act of 1870 to do just that, including a so-called quo warranto measure authorizing civil actions to remove disqualified officeholders.
“The holding of Griffin’s case (says) that a state is not allowed to implement or enforce Section 3 of the 14th Amendment unless and until Congress enacts implementing legislation allowing it to do so,” Mitchell said.
Supporters of Trump’s disqualification say that Griffin’s case was wrongly decided. In an influential 2023 paper on Section 3, conservative legal scholars William Baude and Michael Stokes Paulsen called Chase’s opinion “full of sleight of hand, motivated reasoning and self-defeating maneuvers.” The Griffin decision also directly conflicts with a separate circuit-court opinion authored by Chase regarding the treason prosecution of former Confederate president Jefferson Davis, in which he reached the opposite conclusion.
“Griffin was not a precedential Supreme Court decision,” noted Justice Sonia Sotomayor. “It was a circuit-court decision by a justice who, when he becomes a justice, writes in the Davis case, he assumed that Jefferson Davis would be ineligible to hold any office, particularly the presidency, and treated … Section 3 as executing itself, needing no legislation on the part of Congress to give it effect.”
But many of the justices expressed concerns about the implications of ruling that Section 3 is “self-executing,” allowing states to enforce it without congressional action. Responding to questions from Justice Samuel Alito, Stevenson said the country has “institutions in place” to prevent a tit-for-tat series of legal battles over candidate disqualifications.
“I think we have to have faith in our system, that people will follow their election processes appropriately, that they will take realistic views of what insurrection is under the 14th Amendment,” Stevenson said. “Courts will review those decisions. This court may review some of them. But I don’t think that this court should take those threats too seriously in its resolution of this case.”
“You don’t think that’s a serious threat?” asked Alito. “We should proceed on the assumption that it’s not a serious threat?”
In visible contrast to other justices, Alito, a hardline conservative appointed to the bench by former President George W. Bush in 2006, maintained a relaxed posture throughout much of Thursday’s hearing, and could frequently be seen reclined and rocking in his chair during questioning.
At one point, Alito probed Murray with pointed questions about whether Section 3’s disqualification for officeholders who have “given aid or comfort to the enemies” of the United States could be used to disqualify a president who acted to “release funds” to “a country that proclaims again and again and again that the United States is its biggest enemy” — a reference to a far-right talking point positing that President Joe Biden could be disqualified for issuing certain economic sanctions waivers in the course of diplomatic negotiations with Iran.
“You’re really not answering my question,” Alito told Murray when he tried to respond. “It’s not helpful if you don’t do that.”
Though Trump was impeached by the Democratic-led U.S. House of Representatives shortly after the events of Jan. 6 for “incitement of insurrection,” he was acquitted after leaving office when all but a handful of Republican senators voted against his conviction. Last year, he was indicted by federal prosecutors who allege that his “pervasive and destabilizing lies” about the 2020 election “targeted a bedrock function of the United States federal government.”
That case is still pending, and Trump’s attorneys have asked courts to dismiss it on the grounds that he is immune from prosecution for actions he took in his official capacity as president. After the U.S. Court of Appeals turned down that argument this week, Trump could soon appeal the presidential immunity claims to the Supreme Court.
Federal statute has lacked a clear civil enforcement mechanism for Section 3 disqualification since the relevant portions of the Enforcement Act of 1870 were repealed in 1948. A criminal penalty exists under a law known as Section 2383, and anyone convicted under that statute faces a prison term of up to 10 years and disqualification from “holding any office under the United States.”
Justice Brett Kavanaugh, one of three members of the Supreme Court appointed by Trump himself, also appeared to be satisfied with the Griffin’s case precedent during Thursday’s arguments, and said that Congress could enact Section 3 enforcement legislation similar to the criminal penalty under Section 2383 if it wanted.
“Just to be clear, under (Section) 2383, you agree that someone could be prosecuted for insurrection by federal prosecutors and, if convicted, could be or shall be disqualified then from office?” Kavanaugh asked Mitchell.
Mitchell’s answer sent a ripple of murmurs through the crowded court chambers.
“Yes. But the only caveat that I would add is that our client is arguing that he has presidential immunity,” he said. “So we would not concede that he can be prosecuted for what he did on Jan. 6 under (Section) 2383.”