By Greg Stohr, Erik Larson, Lydia Wheeler, and Chris Strohm
Liberal and conservative justices both signaled skepticism Thursday that states have the power to exclude presidential candidates from the ballot because they engaged in insurrection.
The justices heard arguments over former President Donald Trump’s eligibility to appear on the ballot in Colorado’s presidential primary. The case, brought by six Colorado voters, thrusts the justices into an election contest in the biggest way since 2000’s Bush v. Gore showdown.
“I think that the question that you have to confront is why a single state should decide who gets to be president of the United States,” Justice Elena Kagan, who was nominated by Democratic President Barack Obama, said to Jason Murray, the voters’ attorney.
Chief Justice John Roberts, appointed by Republican President George W. Bush, said the whole point of the 14th Amendment was to restrict state power. “That seems to be a position that is at war with the whole thrust of the 14th Amendment and historically atypical,” he told Murray.
Roberts also raised the concern that if Colorado is allowed to remove Trump from the ballot, other states could do the same to other candidates.
“If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side and surely some of those will succeed,” Roberts said.
The case centers around the Constitution’s 14th Amendment, which was passed by Congress in 1866, following the Civil War, and ratified by the requisite three-fourths of states two years later. It extended rights and liberties to former slaves.
In addition, Section 3 of the amendment was intended to disqualify anybody who had supported the secession of the southern states and the Confederacy they formed from returning to political office. Though the Amnesty Act of 1872 lifted that disqualification in most cases, the so-called Insurrection Clause remained on the books.
Arguments in the case kicked off with Trump’s lawyer, Jonathan Mitchell, and focused on whether the law, which covers officers of the US, applies to the president. Mitchell said it refers to unelected officials.
The Supreme Court’s decision in this case will have huge ramifications across the country, particularly in states where there are still-pending legal challenges seeking to remove Trump from the ballot.
There are cases pending in at least nine states. If the high court rules in favor of the Colorado voters, plaintiffs will likely revive any cases that have been dismissed by lower courts, including in Michigan and Minnesota.
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