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US Supreme Court appears wary of keeping Trump off Colorado ballot

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The US Supreme Court on Thursday expressed doubts about a decision by Colorado’s highest court excluding Donald Trump from the state’s primary ballot, in a high-stakes election case with consequences for the 2024 presidential race.

The court’s nine justices peppered both sides with sharp questioning during oral arguments in an appeal against the Colorado decision. The state’s high court in December disqualified Trump from its ballots on the basis that he had engaged in insurrection after the 2020 contest.

The Colorado Supreme Court had found Trump violated section three of the 14th amendment of the US Constitution, a provision from the era of the American civil war that bars officers who have engaged in rebellion or insurrection from holding office.

Jonathan Mitchell, a lawyer representing the former president, argued section three — which does not explicitly mention the presidential role — did not apply to elected officers such as Trump. He added that Congress, rather than states, has the power to disqualify presidential candidates based on this provision.

Letting Colorado’s decision stand would also “take away the votes of potentially tens of millions of Americans”, Mitchell added.

Several justices appeared to agree with the notion that presidents are not explicitly included in section three. Justice Ketanji Brown Jackson, a member of the court’s liberal wing, argued that the measure’s history suggested it was aimed at stopping Confederates from joining local levels of government after the civil war.

The case was brought by a group of Colorado voters who argued that Trump had engaged in insurrection on January 6 2021, when a group of his supporters stormed the US Capitol in a bid to stop the certification of Joe Biden’s victory in presidential polls.

Mitchell characterised January 6 as a “riot” rather than an insurrection. But Jason Murray, a lawyer representing the Colorado voters who challenged Trump’s eligibility, told the court it was far more serious: “For the first time since the war of 1812, our nation’s capital came under violent assault. For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power.”

Several justices appeared sceptical of the argument that states have the power to disqualify a presidential candidate. “The question that you have to confront is why a single state should decide who gets to be president of the United States,” said liberal justice Elena Kagan. “It sounds awfully national to me.”

Justice Brett Kavanaugh joined that debate, asking: “What about the idea that we should think about democracy . . . [and] the right of the people to elect candidates of their choice, letting the people decide?” Colorado’s position “has the effect of disenfranchising voters to a significant degree”, he added.

Murray responded that Trump had “tried to disenfranchise 80mn Americans who voted against him and the Constitution doesn’t require that he be given another chance”.

In response to concerns raised by Justice Samuel Alito that one state’s decision would have an outsized impact on a national election, Shannon Stevenson, Colorado solicitor-general, said: “[W]e need to let that play out and accept that there may be some messiness of federalism here”.

Chief justice John Roberts challenged Murray, saying the lawyer was implying that the power of disqualification was “implicitly extended to the states under a [separate constitutional] clause that doesn’t address that at all”.

Alito also raised concerns that upholding Colorado’s decision may push other states to “retaliate” by potentially disqualifying other presidential candidates. Stevenson urged the court to have “faith in our system”.

The Colorado case is the most high-profile election dispute before the Supreme Court since Bush vs Gore, a controversial decision that in effect sealed the 2000 presidential win for George W Bush after a recount in the state of Florida was blocked.

A decision will probably come just months before the 2024 presidential election in November. Trump is the frontrunner to clinch the Republican nomination and challenge President Biden, who is seeking re-election.

It will be the first time the Supreme Court addresses how a legal principle originally aimed at keeping Confederates from holding office applies to the eligibility of present-day presidential candidates.

Justice Sonia Sotomayor warned against crafting a narrow decision applying only to Trump, rather than a more definitive ruling, as it would be a “bit of a gerrymandered rule”.

If Colorado’s ruling stands, Trump would be stricken from the state’s primary ballot — but more importantly, petitioners in other states would be emboldened to pursue their own 14th amendment challenges. Similar cases that have been brought in other states have either been dismissed, put on hold or are still pending.

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