Colorado’s case for disqualifying former President Donald Trump from the ballot faces a lot of hurdles, with every one of numerous questions having to go its way in order to win: Could Section Three of the Fourteenth Amendment be invoked to disqualify without applying a federal statute? Is the president an “officer of the United States” covered by Section Three? Was January 6 an insurrection? If so, did Trump engage in it? Can those disqualified from holding office, subject to Congress’ right to undo disqualification, also be barred from election ballots?
Two hours of oral argument yesterday were not enough to explore all these questions in depth, though several of them came up. But one overriding theme that grabbed the attention of most justices was the difficulty that would be caused by Colorado’s position that individual states could decide the disqualification of candidates under Section Three. Central to this discussion is Griffin’s Case (1869), decided by Chief Justice Salmon P. Chase sitting on circuit, which held that Section Three could not be applied to disqualify officials lawfully seated before the ratification of the Fourteenth Amendment absent legislation by Congress. To ascertain which individuals are covered by the recent amendment, Chase wrote, “proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress.” In the first Enforcement Act of 1870, Congress put such procedures in place, enabling federal prosecutors to bring quo warranto actions to remove those who should be disqualified. But those provisions were repealed during the twentieth century.
What happens when a state tries to disqualify a covered person under Section Three without resting on a federal statute? Justice Samuel Alito asked whether “the decision of the Colorado Supreme Court could effectively decide this question for many other states, perhaps all other states?” Or alternatively, without one state’s proceedings having a preclusive effect on others, “another state court could reach an opposite conclusion on” the relevant questions.
Justice Elena Kagan was similarly concerned with
why a single state should decide who gets to be president of the United States. . . . [I]f you weren’t from Colorado and you were from Wisconsin or you were from Michigan and it really—you know, 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, I mean, that seems quite extraordinary, doesn’t it?
Justice Amy Coney Barrett added to Kagan’s point, “The first mover state here, Colorado, we’re stuck with that record. And . . . maybe the record is great, but what if the record wasn’t?” Doesn’t the question of how “we review those factual findings” reinforce the point “that it just doesn’t seem like a state call?”
Justice Ketanji Brown Jackson similarly asked “why the Framers would have designed a system that would—could result in interim disuniformity in this way where we have elections pending and different states suddenly saying you’re eligible, you’re not, on the basis of this kind of thing?”
Chief Justice John Roberts found the “plain consequences” of Colorado’s position to be that “there will be disqualification proceedings on the other side. And some of those will succeed.” And we could expect some of those cases to involve “different standards of proof” and “different rules about evidence.” And he predicted that “a goodly number of states will say, whoever the Democratic candidate is, you’re off the ballot. And others for the Republican candidate, you’re off the ballot.” The “daunting consequence” of this scenario is there will be “just a handful of states that are going to decide the presidential election.”
Questions from Justices Clarence Thomas and Brett Kavanaugh brought out that in over a century and a half, there is no history of states exercising the sort of Section Three authority to disqualify national candidates claimed now by Colorado. Kavanaugh observed that “there’s been a settled understanding that Chief Justice Chase, even if not right in every detail, was essentially right, and the branches of the government have acted under that settled understanding for 155 years.”
Additionally, if Griffin’s Case was mistaken and a covered public official is “disqualified from the moment he committed an insurrection,” Justice Neil Gorsuch identified another point of potential chaos: “What would compel a lower official to obey an order from that individual?”
Justice Sonia Sotomayor stood out for the amount of credit she seemed to give to Colorado’s case. At one point, she challenged Chase’s position in Griffin’s Case as a flip-flop from his position in Jefferson Davis’ prosecution for treason a year earlier. But as my JCN colleague Frank Scaturro pointed out, the inconsistent earlier quote that she attributed to Chase actually came from Davis’ lawyer. Chase’s apparent position in that case, that Section Three served as a defense precluding Davis’ treason prosecution, did not contradict the relevant point in Griffin’s Case about the need for Congress to provide the cause of action to disqualify.
It is hard to predict a case’s outcome based on oral argument, never mind pinpointing on which ground(s) the justices will base their ultimate votes when so many issues are in play. But yesterday’s oral argument makes clear that a supermajority of justices recognize that a Colorado victory would invite chaos in any number of future elections.