WASHINGTON—The Supreme Court on Feb. 8 heard oral arguments in the high-profile case involving former President Donald Trump’s bid to remain on the Colorado primary ballot, expressing skepticism of the arguments in favor of removing him.
Lawyer Jason Clifford Murray, who argued for the six Colorado voters who petitioned to remove President Trump from the ballot, at times frustrated judges by sidestepping questions about the consequences of a ruling in his favor.
Article 2 gives states broad powers to run elections, Mr. Murray argued, and those powers involve removing ineligible candidates from the ballot—even in a national election—through the process of their choosing.
State Authority Limits
“Why should a single state get to decide who gets to be the president of the United States?” Justice Elena Kagan asked. “That means is quite extraordinary.”Mr. Murray said that wasn’t the case because the Supreme Court would ultimately make a decision that could inform all other states to take Colorado’s record of fact—largely based on the Jan. 6 Select Committee report—as settled.
This answer drew several more hypothetical situations of chaos from the justices, who pointed out that states have different processes for adjudicating ballot issues, meaning that several different records of fact and decisions could come before the Supreme Court.
In that case, why should they accept one over another? “Would we have to determine appropriate rule of evidence ... standard of proof?” Justice Samuel Alito asked. “Would we give any deference to these state court judges, some of whom are elected. ... Would we have to have our own trial?”
Mr. Murray answered no, but that the court could do an independent review of Colorado’s record. Justice Alito asked what would happen if two sets of decisions and records were presented before the court, and Mr. Murray couldn’t answer.
Justice Alito said he was trying to invite Mr. Murray to “grapple with the consequences of the argument you’re advancing” and the potential “unmanageable situation” that would arise, and Mr. Murray again asked the court to write an opinion affirming the Colorado court’s finding that President Trump engaged in “insurrection.”
“What about democracy, the right of people to elect the candidate of their choice?” Justice Brett Kavanaugh asked, telling Mr. Murray that his position could disenfranchise a great number of voters. Mr. Murray said that Section 3 was intended to protect democracy, such as through preventing President Trump, who he alleged disenfranchised 80 million Americans who'd voted against him, from taking office again.
“It just doesn’t seem like a state call,” Justice Amy Coney Barrett said.
Justice Ketanji Brown Jackson asked Mr. Murray about the lack of uniformity that this decision could create, and Mr. Murray again answered that the Supreme Court could write an opinion that could create uniformity.
“I understand that we could resolve it for uniformity,” she responded, but asked why he thought that the framers would design a situation that would create an interim of great difference in the meantime.
Mr. Murray said their primary concern was that insurrectionists wouldn’t hold office, and it was “weird to say states can’t enforce” Section 3 to that effect.
Justice Clarence Thomas said he was aware of the many examples of states using Section 3 to bar insurrectionists from state offices in the wake of the Civil War, and asked Mr. Murray to provide cases of states doing the same with national candidates, which he didn’t have. Justice Thomas was skeptical that Section 3 was intended to allow the South to block a national candidate.
Justice Kavanaugh suggested that Mr. Murray was looking for legal authority in the wrong place—that the 14th Amendment was meant to augment state powers and Section 3 didn’t mention state powers at all. Section 5, meanwhile, adds that Congress has authority to enact legislation regarding these matters.
Mr. Murray answered that Section 5 doesn’t expressly say that only Congress has such powers.
Justice Neil Gorsuch asked Mr. Murray whether he held that state authority to enforce federal elections has to come from constitutional authority, and Mr. Murray agreed. Justice Gorsuch then said that in seeking to enforce Section 3, the authority also needs to come from Section 3.
‘Serious Threat?’
Colorado Solicitor General Shannon Stevenson argued for the Colorado secretary of state and largely deferred to Mr. Murray’s arguments regarding the legality of Colorado’s actions.Justice Alito asked Ms. Stevenson about the possibility that if Colorado banned President Trump, then other states would “retaliate” and bar other candidates.
Ms. Stevenson replied: “I think we have to have faith in our system that people will follow their election policies and processes appropriately, that they will take realistic views of what insurrection is under the 14th Amendment.”
“I don’t think that this court should take those threats too seriously.”
Justice Alito followed up, asking, “You don’t think that’s a serious threat?”
“I think we have to proceed on the assumption that it’s not a serious threat. I think we have institutions in place to handle those types of allegations,” Ms. Stevenson responded.
Justice Alito asked, “What are those institutions?”
Trump Responds
President Trump weighed in on the case outside his Mar-a-Lago residence in Palm Beach, Florida.“It’s a very beautiful process,” he said, referring to the oral argument. “I hope that democracy in this country will continue because, right now, we have a very, very tough situation with all of the radical left ideas, with the weaponization of politics. They’ve weaponized it like it’s never been weaponized before. It’s totally illegal, but they do it anyway.”
Reactions
Speaking outside the courthouse, Mr. Murray expressed confidence after the oral argument but acknowledged that he was asking the court to recognize “something extraordinary, which is that for the first time in our nation’s history, a major candidate for president of the United States is ineligible for that office under the Constitution.”He added that if his clients lose, “we, as the rest of the country should do, would abide by the result.”
After the oral argument, a group of state secretaries of state criticized the Colorado Supreme Court decision.
“It’s a pretty clear American value that each voter should get to make their decision and that’s how we decide who our party’s nominees are going to be,” Ohio Secretary of State Frank LaRose said outside of the Supreme Court.
“It shouldn’t be judges, and it shouldn’t be secretaries of state that make that decision. It should be the voters.”
Mr. LaRose and secretaries of state from Missouri, Alabama, Arkansas, Kansas, Idaho, Indiana, Montana, Nebraska, Tennessee, and West Virginia submitted an amicus brief arguing that Section 3 didn’t empower people in their positions to disqualify candidates for federal office.
