OPINION: This article may contain commentary which reflects the author's opinion.
Conservative U.S. Supreme Court Justice Samuel Alito argued last week that Colorado’s prohibition on former President Donald Trump’s eligibility to run for president is “quite severe” during a hearing to decide whether kicking him off the state’s 2024 ballot under the guise of “insurrection” is constitutional.
During oral arguments before the nation’s highest court last week, Alito queried Trump’s attorney, Jonathan Mitchell, about whether Colorado was attempting to create legislation that could be applied to other states.
“Suppose there is a country that proclaims again and again and again that the United States is its biggest enemy, and suppose that the president of the United States, for diplomatic reasons, thinks it is in the best interest of the United States to provide funds or release funds so that they can be used by that country, could a state determine that person has given aid and comfort to the enemy and therefore keep that person off of the ballot?” Alito asked.
Mitchell responded that Colorado does not follow the legal doctrine of collateral estoppel or issue preclusion, which forbids a party from re-litigating a matter that has already been determined in a previous court case, so it does not establish a precedent for other states.
In December, the highest court in Colorado effectively declared that Trump had engaged in insurrection in connection with the events of January 6, 2021, when his followers stormed the Capitol building amid the certification of the 2020 presidential election results. With a vote of 4–3, the state court declared that it had not reached its decision “lightly” and that it was “mindful of the magnitude and weight of the questions now before us.”
The decision is on hold while the Supreme Court considers an appeal. There hasn’t been a criminal conviction of Trump for insurrection.
The court in Colorado ruled that Trump’s “direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary.”
“Put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam,” Trump’s attorneys pleaded with the justices in their opening brief to the court.
The court’s conservatives were not the only ones who seemed skeptical of Colorado’s ruling.
In an audio recording from the hearing earlier this month, Justice Ketanji Brown Jackson — who was appointed by President Joe Biden — pointed out a clear issue with Colorado’s argument that Section 3 of the 14th Amendment permits the removal of Trump from the state’s presidential ballot.
Jackson essentially made the point that the presidency is not mentioned in the third section of the Fourteenth Amendment, which says:
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. But Congress may by a vote of two-thirds of each House, remove such disability.
Jackson questioned Jason Murray, the lawyer for the group trying to remove Trump from Colorado’s ballot, and she presented a compelling historical case, voiced doubts about Colorado’s reading of Section 3, and ultimately acknowledged both the original meaning and judicial restraint.
Murray went on to say that the framers of the 14th Amendment intended to bar “charismatic rebels” from holding any position in the federal government, including the presidency.
“But then why didn’t they put the word ‘president’ in the very enumerated list in Section 3?” she asked.
“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. And so, I guess that just makes me worry that maybe they weren’t focusing on the president,” she added.
