The Supreme Court hears oral argument in the Colorado ballot case at 9:00 a.m. this morning — the case of Trump v. Anderson. Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot under section 3 of the Fourteenth Amendment? Is this national question to be determined separately by each of the 50 states? Is section 3 applicable to the office of the presidency? Some version of these questions is to be resolved by the Court in the case.
Section 3 reads: “No person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Here is the Court’s formulation of the question presented:
The Supreme Court of Colorado held that President Donald J. Trump is disqualified from holding the office of President because he “engaged in insurrection” against the Constitution of the United States-and that he did so after taking an oath “as an officer of the United States” to “support” the Constitution. The state supreme court ruled that the Colorado Secretary of State should not list President Trump’s name on the 2024 presidential primary ballot or count any write-in votes cast for him. The state supreme court stayed its decision pending United States Supreme Court review.
The question presented is:
Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?
The briefs filed in the Supreme Court are accessible online here. Those of us who seek the guidance of Professor John Yoo on murky constitutional questions can consult the amicus brief he filed on behalf of the Claremont Institute here. My unsophisticated take is that the Colorado Supreme Court erred. Its decision can’t be right. Some predicate is lacking.
The Supreme Court is live streaming the oral argument here. A recording should be posted here later. I hope to have a comment or two on the probable outcome of the case after I have had a chance to take in the oral argument.
JOHN adds: I don’t think there is any way the Supreme Court will boot Donald Trump off the ballot. We had one civil war, they don’t want to cause another. Nor do I think they will permit a situation where he is on the ballot in some states, and barred in other states. The question is a federal one. My hope is that they base their decision on the fact that whatever happened on January 6, it was not an “insurrection” within the meaning of the 14th Amendment. A more technical ruling is possible, but, in my opinion, much less desirable.