By Catherine Yang and Sam Dorman
WASHINGTON—The Supreme Court held the highly anticipated hearing of former President Donald Trump’s appeal to remain on the Colorado primary ballot, expressing repeated skepticism that a ruling to remove him would not result in swift and widespread election chaos.
Jason Clifford Murray argued for the six Colorado voters who petitioned to remove President Trump from the ballot, and several times frustrated judges by sidestepping questions about the consequences of a ruling in his favor.
Article 2 gives states broad power to run elections, Mr. Murray argued, and that involved removing ineligible candidates from the ballot—even in a national election—through the process of their choosing.
The justices expressed skepticism that a ruling affirming the Colorado decision would settle the matter.
State Authority Limits
“Why should a single state get to decide who gets to be the President of the United States?” asked Justice Elena Kagan. “That means is quite extraordinary.”
Mr. Murray said that was not 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 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 could not 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 “unmanagable 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 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 voted against him, from taking office again.
“It just doesn’t seem like a state call,” said Justice Amy Barrett.
Justice Ketanji Brown Jackson asked Mr. Murray about the lack of uniformity 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, asking why he thought 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 would not 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 did not have. Justice Thomas was skeptical that Section 3 was intended so as to allow the South to block a national candidate.
Justice Kavanaugh suggested he was looking for legal authority in the wrong place; that the 14th Amendment was meant to augment state powers and Section 3 did not 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 did not expressly say that only Congress has such powers, acknowledging the authority was implicit.
Justice 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.
Mr. Murray argued that authority from Article 2 would allow states to enforce Section 3, but several justices commented that this could be taken to be adding a qualification to the presidency, which would be unconstitutional.
‘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 Samuel 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 should take those threats too seriously,” she added.
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?”
“Our states, there are electoral rules, the administrators who enforce those rules, the courts that will review these decisions, and up to this court to ultimately review that decision,” Ms. Stevenson replied.
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 hearing. “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.”
After giving a press conference he headed to Nevada, where he said he expects to have “a very big night” as the only major contender participating in the state’s Republican caucus.
Reactions
Speaking outside the courthouse, Mr. Murray expressed confidence after 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 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.
Samantha Flom contributed to this report.
