The U.S. Supreme Court heard roughly two hours of arguments Thursday concerning the effort by six Colorado voters to deny their fellow countrymen the opportunity to vote for the Republican front-runner in the 2024 election.
Jason Murray, a Denver lawyer representing the six voters, struggled to make a case for former President Donald Trump’s disqualification, ostensibly tripping over simple questions and facts.
While conservative Justices Clarence Thomas and Brett Kavanaugh predictably exposed the various faults in Murray’s arguments, even left-leaning Justices Elena Kagan and Ketanji Brown Jackson seemed unimpressed, casting doubt over whether Section 3 of the 14th Amendment applies and over whether the Centennial State should determine the fate of the nation.
Six voters backed by a Democrat-aligned group, which is helmed by a former Biden official, sued in September 2023 to have Trump removed from Colorado ballots in the 2024 election, claiming both that Section 3 of the 14th Amendment concerning insurrection applies to Trump and that the former president’s actions on Jan. 6, 2021, qualified.
The case was kicked up to the Democratic appointees on the Colorado Supreme Court, who
ruled in a 4-3 December decision that Trump engaged in an insurrection on Jan. 6, is ineligible to be president, and cannot therefore appear on the ballot.
Trump’s legal team appealed the verdict, maintaining that the former president did not engage in an insurrection; Section 3 does not apply to the president; the Colorado Supreme Court violated the Electors Clause; and Congress is the proper body to resolve such matters.
Murray swings and misses — repeatedly
Murray, who previously convinced Democratic appointees on the Colorado Supreme Court to declare Trump ineligible to appear on ballots in the state, attempted to repeat his success Thursday but soon discovered the road forward had not similarly been ideologically greased.
Justice Kagan, for instance,
said to Murray, “The question you have to confront is why a single state should decide who gets to be president of the United States. In other words, you know, this question of whether a former president is disqualified for insurrection to be president again is — just say it — it sounds awfully national to me.”
“So whatever means there are to enforce it would suggest that they have to be federal, national means,” continued Kagan. “If you weren’t from Colorado and you were from Wisconsin or you were from Michigan and … what the Michigan secretary of state did is going to make the difference between, you know, whether candidate A is elected or candidate B is elected. That seems quite extraordinary, doesn’t it?”
“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?” added Kagan.
Chief Justice John Roberts echoed Kagan’s concern, suggesting states would likely weaponize such a precedent and proceed to knock other candidates off the ballot,
“It’ll come down to just a handful of states that are going to decide the presidential election,” said Roberts. “That’s a pretty daunting consequence.”
Justice Thomas was even less forgiving when questioning Murray.
Thomas pressed Murray to cite examples of national candidates who have similarly been disqualified — possibly Confederates running for high office “after Reconstruction and after the compromise of 1877 and during the period of Redeemers.”
“There were certainly national candidates who were disqualified by Congress refusing to seat them,” replied Murray.
“I understand that, but that’s not this case,” Thomas fired back. “States disqualified them; that’s what we’re talking about here. I understand Congress would not seat them.”
“Again, your honor, [the absence of examples] is not surprising because there wouldn’t have been — states certainly wouldn’t have the authority to remove a sitting—,” Murray said before being cut off by Thomas.
“So what was the purpose of the Section 3? States were sending people. The concern was that the former Confederate states would continue being bad actors, and the effort was to prevent them from doing this,” said Thomas. “And you’re saying that … this also authorized states to disqualify candidates. So what I’m asking you for, if you are right, [is] what are the examples?”
Murray alluded to examples of states excluding candidates from holding state offices, but was cut off again by Thomas, who said, “I understand the states controlling state elections and state positions. What we are talking about are national candidates. … Do you have any examples of this?”
Murray apparently did not.
Justice Kavanaugh indicated there were already mechanisms in place to prevent insurrectionists from holding office, intimating Colorado was overreaching.
“Some of the rhetoric of your position — I don’t think it is your position — but some of the rhetoric of your position seems to suggest unless the states can do this, no one can prevent insurrectionists from holding federal office,” said Kavanaugh. “But obviously Congress has enacted statutes, including one still in effect,
Section 2383 of Title 18 prohibits insurrection; it’s a federal criminal statute. And if you’re convicted of that, you are, it says ‘shall be disqualified from holding any office.’ And so there is a federal statute on the books, but President Trump has not been charged with that. So what are we to make of that?”
suggested that the effort to remove Trump from the ballot “has the effect of disenfranchising voters to a significant degree.”
Justice Brown cast doubt on whether the Framers intended Section 3 to be used as Murray argued it should be.
“I’m wondering really whether presidential elections were such a circumstance, that the Framers actually envisioned states enforcing Section 3 with respect to presidential elections as opposed to senatorial elections, representatives, the sort of more local concerns,” said Brown.
“The more broad point I want to make is that what is very clear from the history is that the Framers were concerned about charismatic rebels who might rise through the ranks up to and including the presidency of the United States,” said Murray.
“But then why didn’t they put the word ‘president’ in the very enumerated list in Section 3?” asked Brown. “The thing that really is troubling to me is — I totally understand your argument — but they were listing people that were barred, and president is not there. So I guess that just makes me worried that maybe they weren’t focusing on the president.”
Brown added, “The fact that electors of vice president and president are there suggests that really what [the Framers] thought was, ‘If we’re worried about the charismatic person, we’re going to bar insurrectionist electors and therefore that person is never going to rise.”
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