Justice Elena Kagan asked a decisive question Thursday during oral arguments in the Colorado presidential ballot access case concerning former President Donald Trump.
In December, the Colorado Supreme Court ruled that Trump, the GOP front-runner in this year’s presidential race, was ineligible to be on the ballot in the state, concluding he participated in an “insurrection” and therefore is disqualified from holding federal office under Section 3 of the Constitution’s 14th Amendment.
The amendment was ratified in 1868 in the aftermath of the Civil War, and Section 3 prevented former supporters of the Confederacy, who “engaged in insurrection or rebellion” or gave “aid or comfort to the enemies” of the United States, from holding political office.
The Colorado Supreme Court concluded, in a 4-3 decision, that Trump’s role in the Jan. 6, 2021, Capitol incursion amounted to participation in an insurrection.
It is a violation of federal law to engage in a rebellion or insurrection, with a maximum penalty of 10 years in prison. Trump supporters have noted that he has not been charged with, much less convicted of, any such crime.
On Jan. 4, the former president appealed the Colorado decision to the U.S. Supreme Court, which announced two days later that it would review the case.
During oral arguments Thursday, Kagan, a liberal appointed to the court by then-President Barack Obama in 2009, told Jason Murray, the attorney representing Colorado voters, “Most boldly, I think that the question that 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 to just say it — it sounds awfully national to me,” she continued.
“So whatever means there are to enforce it would suggest that they have to be federal, national means,” Kagan said.
Will the Supreme Court rule in Trump’s favor?
She contended that it would be “extraordinary” that one secretary of state in a swing state such as Wisconsin or Michigan could have the power to decide who the next president would be simply by ruling that he or she is ineligible to be on the ballot.
Murray responded that ultimately it would fall on the U.S. Supreme Court to decide what due process is required by states seeking to take such an action.
Kagan countered by supposing the court ruled that a state had the power to do 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?” she asked.
Murray cited Article II, Section 1 of the Constitution, which gives states the power to decide how to choose their presidential electors.
But that really does not go to the question of who is on the presidential ballot in the first place.
Justice Amy Coney Barrett, a Trump appointee, jumped in and asked Murray about the different means each state might use to establish that a candidate is ineligible.
“What if this [decision] is made by the secretary of state without much [due] process at all?” she asked.
“It just doesn’t seem like a state call,” Barrett added.
Murray again suggested it would fall on the U.S. Supreme Court to do its own review of the factual record.
Justice Kagan: “The question that you have to confront is why a single state should decide who gets to be President of the United States.” pic.twitter.com/2zO4UeJos4
— CSPAN (@cspan) February 8, 2024
The point Kagan and Barrett seemed to be making was that it should be up to Congress, not individual states, to establish a uniform rule for the nation regarding ballot eligibility under the 14th Amendment.
Section 5 of the amendment, in fact, empowers Congress to do just that.
If Trump had been convicted of the federal crime of insurrection, states could argue that Section 3 of the amendment applies. They would not be establishing their own standards of insurrection.
The justices’ questions, by and large, seemed to express skepticism of Colorado’s ability to disqualify the former president.
Supreme Court oral arguments do not appear to be going very well for Colorado’s lawyer attempting to disqualify Trump from the ballot.
He has, so far, been met with a heavy amount of skepticism — even from Obama-nominated Justice Elena Kagan, whose line of questioning was…
— Kayleigh McEnany (@kayleighmcenany) February 8, 2024
It’s hard to tell, based on questioning alone, where the justices will ultimately fall, but it would not be shocking to see a 9-0 ruling in favor of his being on the ballot.
And if there is a 9-0 or 8-1 vote, with Kagan and other liberal justices joining in, it will take the air out of special counsel Jack Smith’s federal election interference case against Trump.
