WASHINGTON, DC – Should Donald Trump be barred from running again for president because he engaged in an insurrection — the Jan. 6, 2021 assault on the US Capitol by his supporters?
That is the question before the Supreme Court this week as it hears Trump’s appeal of a ruling by Colorado’s top court that would keep him off the presidential primary ballot in the state.
It is the most significant election law case to reach the nation’s highest court since it halted a vote recount in Florida in 2000 with Republican George W. Bush holding a razor-thin edge over Democrat Al Gore.
The conservative-majority Supreme Court, which includes three justices appointed by Trump, has set aside 80 minutes for oral arguments on Thursday beginning at 10:00 am but they are expected to go longer.
The Colorado Supreme Court barred Trump in December from appearing on the Republican primary ballot in the state because of his role in the January 6 attack on Congress.
Trump, the front-runner for the 2024 Republican presidential nomination, appealed to the Supreme Court urging it to throw out the Colorado ruling and bids in other states to keep the former president off the ballot.
“The Court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans,” Trump’s attorneys said.
They warned of “chaos and bedlam” if other states “follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots.”
So far only Colorado and Maine, citing the 14th Amendment to the US Constitution, have ruled that the 77-year-old Trump is ineligible to appear on the primary ballot.
Section 3 of the 14th Amendment bars anyone from holding public office if they engaged in “insurrection or rebellion” after once pledging to support and defend the Constitution.
The amendment, ratified in 1868 after the Civil War, was aimed at preventing supporters of the slave-holding breakaway Confederacy from being elected to Congress or from holding federal positions.
Colorado and Maine hold their presidential nominating contests on March 5 — also known as “Super Tuesday” — when voters in more than a dozen states, including California and Texas, go to the polls.
In a brief, Trump’s attorneys said Section 3 should not apply because the president is not technically an “officer of the United States,” an argument that was rejected by the Colorado Supreme Court.
In addition, they argued, “the Court should also reverse because President Trump did not ‘engage in insurrection.’”
“President Trump never participated in or directed any of the illegal conduct that occurred at the Capitol,” they said.
Trump delivered a fiery speech to thousands of supporters in Washington on January 6 before they converged on the Capitol in a bid to block congressional certification of Democrat Joe Biden’s election victory.
He was impeached by the Democratic-majority House of Representatives for inciting an insurrection but was acquitted by the Senate.
Steven Schwinn, a constitutional law professor at the University of Illinois Chicago, said the courts do not have much experience with Section 3 cases and “it’s difficult to predict how the different justices will address the issue.”
“That said, I anticipate that this court will probably not affirm the Colorado Supreme Court in full,” Schwinn said.
“I suspect that the majority on this court will not want to be perceived as taking away the choice of a candidate from a significant number of voters,” he said.
“The most likely off-ramp for the court here, the one that it’s most likely to adopt, is to say that only Congress has the authority to disqualify a candidate.”
The Supreme Court 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 took while in the White House.
Trump is accused of conspiring to overturn the results of the 2020 election but his trial, which had been scheduled to begin in March, has been on hold pending the outcome of the immunity case.
Trump has until Monday to appeal the immunity ruling to the Supreme Court.
Trump also faces racketeering charges in Georgia for allegedly conspiring to upend the election results in the southern state and charges in Florida for allegedly mishandling top secret documents.
