WASHINGTON, D.C. — During oral arguments Thursday, U.S. Supreme Court justices appeared very skeptical of Colorado’s decision to remove former President Donald Trump from the state’s primary ballot.
“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, one of the court’s liberal justices told the attorney representing a group of Colorado voters pushing to remove Trump from the ballot.
The Court must decide whether the Colorado Supreme Court got it wrong when it disqualified Trump from the state’s presidential primary ballot.
Trump’s attorney, Jonathan Mitchell, says there’s no doubt it did.
“The Colorado Supreme Court's decision is wrong and should be reversed for numerous independent reasons,” said Mithcell.
In its ruling in December, Colorado’s Supreme Court determined Trump engaged in insurrection on January 6 and is no longer qualified to become president again, under section three of the Fourteenth Amendment.
The amendment says no officer of the United States shall hold any office who shall have engaged in insurrection.
Mitchell argues as president, Trump was not considered an officer of the United States.
“Officer of the United States refers only to appointed officials, and it does not encompass elected individuals, such as the president or members of Congress,” said Mitchell.
Mitchell said even if Trump engaged in insurrection, a state cannot exclude any candidate for federal office.
“And any state that does so is violating the holding of term limits by altering the Constitution's qualification for federal office,” said Mitchell.
But Mitchell was clear that Trump’s actions on January 6 did not rise to the level of insurrection.
“For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence,” Mitchell said.
“And your point is that a chaotic effort to overthrow the government is not an insurrection?” asked Justice Ketanji Brown Jackson
“We didn't concede that it's an effort to overthrow the government either, Justice Jackson,” Mitchell replied. “None of these criteria were met. This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things. But it did not qualify as insurrection.”
Despite Trump never having been charged with insurrection, Colorado Secretary of State Jena Griswold said she still believes he engaged in insurrection.
“Historically there was no need for a criminal prosecution to disqualify someone under section three of the Fourteenth Amendment,” said Griswold. “And if you look at the clear wording, it does not include a requirement of a criminal charge. It does not include a guilty plea or anything like that. It's a civil standard.”
But the Court’s decision may come down to whether Colorado had a right to remove Trump from the ballot.
"Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?" asked Kagan.
Kagan said one state’s decision to remove a candidate from the ballot could result in that state, through its action, essentially deciding an election for the entire country.
“It seems quite extraordinary, doesn't it?” Kagan asked Jason Murray, an attorney representing Colorado voters who brought the suit seeking to have Trump removed.
“No, Your Honor, because ultimately it's this court that's going to decide that question of federal constitutional eligibility and settle the issue for the nation,” Murray replied.
Colorado’s primary election is March 5.
Griswold said overseas and military ballots have already been sent out, and ballots for most voters will begin going out next week.
Griswold hopes the Court issues a quick decision, within the next week.
