In another win for former President Donald Trump, the U.S. Supreme Court has indicated that states do not have the authority to remove Trump’s name from the 2024 election ballot.
The decision is not final, but the New York Post reported that a “clear majority of the Supreme Court’s nine justices signaled … they would overturn a Colorado ruling barring … Trump from the state’s Republican primary ballot.”
Tellingly, during Thursday’s opening oral arguments, Chief Justice John Roberts telegraphed his leaning by stating that if the Court allowed the Colorado ruling to stand, in the future, Democrats and Republicans could weaponize the statute and act to remove leaders of opposing parties without justification.
By allowing states to remove leaders they do not wish to endorse, “It’ll come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence,” said the chief justice.
In December, the Colorado Supreme Court ruled Trump was ineligible to be on the ballot due to violating the U.S. Constitution’s Article 14 sedition clause due to his comments and actions related to the Jan. 6 2021 protest and breach of the Capitol.
Maine’s attorney general has made a similar declaration, and more than a dozen other states have similar petitions to bar Trump’s name from appearing on their ballot in process. Those legal actions were placed on pause when the U.S. Supreme Court announced they would rule on the matter.
Trump’s legal team has argued that the former president’s comments do not fall under the Constitution’s “Insurrection Clause,” which focuses on actions taken in the course of the Civil War, and that his acquittal by the Senate on Jan. 6 related charges should make the matter mute.
Trump’s appeal of the Colorado Supreme Court decision is supported by an Amicus Brief submitted by more than two dozen state attorneys generals.
If the U.S. Supreme Court rules in favor of Trump, all pending cases on the matter will be dismissed.
Responding to Robert’s concern that Colorado’s statute could easily be abused, Jason Murray, an attorney supporting Colorado’s ruling, said, “Your Honor, the fact that there are potential frivolous applications of a constitutional provision isn’t a reason.”
Liberal U.S. Supreme Court Justice Elena Kagan seemed to side with Roberts, and asked Murray: “The question you have to confront is why one state should decide who gets to be president of the United States.”
Conservative Justice Samuel Alito asked Murray to comment on whether or not Colorado’s statute could be used by current administration leaders to punish past leaders of the opposing party.
In a thinly veiled reference to former President Barack Obama’s controversial unilateral decision to send billions to Iran, Alito asked Murray what he thought about the possibility of “candidates think that it’s in the best interests of the” U.S. for “diplomatic reasons” to send funding to a nation who described Washington as “its biggest enemy.”
Alito added: “Could a state determine that that person has given aid and comfort to the enemy, and therefore keep that person off the ballot?”
Murray contended that the statute could not be used in that way because the Constitution’s language defining treason is precise.
Murry replied: “The clause in question, Section 3 of the Fourteenth Amendment, stipulates: ‘No person shall … hold any office, civil or military, under the United States … [who] shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.’”
The justices did not seem convinced by Murray’s argument.
Of the nine justices, Sonia Sotomayor, known for her liberal rulings, appeared to be most supportive of upholding Colorado’s ruling, even suggesting that an emboldened Trump could continue interpreting the Constitution in ways that advantage him, perhaps challenging the constitutional limit to serving eight years in office.
“Are you setting it up so that if some president runs for a third term, that a state can’t disqualify him from the ballot?” Sotomayor asked Trump’s attorney Jonathan Mitchell.
Justice Ketanji Brown Jackson appeared to side with Sotomayor in her comments.
Justice Brett Kavanaugh pressed Mitchell to concede that individuals convicted of insurrection were ineligible to serve as president of the United States. Mitchell conceded the point but noted that Trump was not convicted of insurrection.
Kavanaugh pressed Murray on the same point and corrected Murray when he would not acknowledge that the Senate exonerated Trump of insurrection allegations.
Mitchell also argued that Trump can claim presidential immunity as a defense against Jan. 6 related charges.
“[The former president] has presidential immunity. So, we would not concede that he can be prosecuted for what he did on January 6,” Mitchell said.
“What we said in our opening brief was President Trump did not engage in any act that can plausibly be characterized as insurrection,” Mitchell clarified. “For an insurrection, there needs to be an organized concerted effort to overthrow the government of the United States through violence.”
“This was a riot. It was not an insurrection,” said Mitchell.
Murray argued that the former president is holding himself above the law. He argued: “Trump’s main argument is that this Court should create a special exemption to section three that would apply to him and to him alone. There is no possible rationale for such an exemption, and the court should reject the claim that the framers made an extraordinary mistake.”
Outside the Court, Sen. Tommy Tuberville (R-AL) made a statement in support of Trump, saying that “the left’s witch hunt has gone on long enough.”
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