Supreme Court skeptical of efforts to kick Trump off the ballot

Murray, the attorney who argued Thursday on behalf of the Republican voters who want Trump off Colorado’s primary ballot, said he was confident in the case, despite the obvious skepticism from the justices.

Murray told reporters outside the Supreme Court that he has received “hard questions” from previous courts that ultimately ruled in his clients’ favor, noting, “You don’t do hard things without asking hard questions.”

He added, “Even though we are right on the law, we understand that what we are asking the court to recognize is 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.”

While he “fully expected” difficult questions, Murray said, “We’re confident that when the court looks at the law and digs into the issues, it will realize that we’re right and apply the law as it’s written.”

Lead plaintiff Norma Anderson called the proceedings “very intense” and said she noticed that each and every justice listened very closely.

“They were curious. They want to know what is their duty,” said the 91-year-old who formerly served as a Republican leader of the Colorado General Assembly and State Senate.

“He committed insurrection and he should not be on the ballot. It’s very simple,” she said. “If they truly believe in our democracy, they will accept it.”

Donald Trump was peppered with questions about tariffs, presidential immunity and his last remaining rival in the primary, Nikki Haley, as he addressed reporters outside of his Mar-a-Lago club following the Supreme Court arguments on the Colorado case.

Trump said he was pleased with his team’s performance after the justices appeared broadly skeptical of efforts to kick him off the 2024 presidential election ballot.

“I listed today and I thought our arguments were very, very strong,” he said.

Trump was repeatedly interrupted by the booming sound of planes flying overhead.

Trump, who is speaking to reporters on today’s proceedings, called the Supreme Court argument “a beautiful thing to watch in many respects,” even as he complained about the case being brought in the first place.

“I hope that democracy in this country will continue,” he told reporters at his Mar-a-Lago club. Much of today’s arguments focused on whether his supporters’ efforts to halt the peaceful transfer of power after the 2020 election should bar him from the ballot in Colorado.

After a very brief rebuttal by Trump’s attorney, Mitchell, the gavel bangs down and the case is submitted to the court.

Arguments did not go the way the plaintiffs wanted. The main question now is how the court rules and what the implications of that decision will be for Trump and beyond.

Colorado’s Solicitor General Shannon Stevenson is doing her best to convince the court that enforcing Section 3 is just as straightforward a job for states as enforcing on presidential candidates the constitution’s age limit of 35 years of age.

Justice Kagan contended that the 14th Amendment was designed to limit states’ powers and that determining who “engaged in insurrection” is “just more complicated and more contested and more political.”

Stevenson argued that it’s possible the question would be very straightforward – if a candidate came in and admitted he was an insurrectionist, there’d be little contesting.

Justice Alito asked about a persistent worry of justices, that other states would retaliate by trying to disqualify candidates they didn’t like. Stevenson argued, basically, trust the states’ election and judicial professionals to keep that from happening.

Under questioning from Justice Sotomayor on what the options will be if the court rules that states don’t have the authority to keep a candidate off the ballot, Murray said, “Certainly there are historical examples of members of Congress under Congress’ Article 1 power to judge the qualifications of its members, of members of Congress refusing to seat ineligible candidates under Section three who had won election.”

Suggesting a potential hypothetical, “What happens when members of Congress on January 6th, when they count the electoral votes and say we’re not going to count electoral votes cast for President Trump because he’s disqualified under Section 3 under the Electoral Count Reform Act?” Murray said a number of the amicus briefs have made the point “that is kind of disenfranchisement and constitutional crisis in the making and is all the more reason to address those issues now in a judicial process on a full evidentiary record so that everybody can have certainty on those issues before they go to the polls.”

Just about every justice has asked pointed, skeptical questions of Murray. Even the Democratic-appointed ones haven’t thrown him lifelines.

Murray argues the only reason Section 3 hasn’t come up in the past 150 years is because no one engaged in an act as grave as Jan. 6. Justice Kavanaugh scoffed at that, noting that the reason is more likely because a judge in 1869 ruled that only Congress can create a process to disqualify officeholders and the law Congress passed to do that has sunsetted.

That may be a hint as to one direction the court could go to in disposing the case.

The attorney for the plaintiffs trying to disqualify Trump, Jason Murray, just started and immediately ran into very skeptical questions from the justices.

Justice Thomas asked for historical examples of states disqualifying federal officials under Section 3 after the Civil War. Murray could only come up with one, of a Georgia governor refusing to affirm the election to Congress of a former confederate.

The justices pounced. Why, Thomas and Chief Justice Roberts asked, would the writers of Section 3 want to give former rebellious states the ability to determine who can sit in Washington? Justice Kavanaugh noted that Section 3 includes terms like “insurrection” that require some sort of fact-finding.

“The question that you have to confront,” Justice Kagan said, “is why a single state gets to decide who can be president of the United States.”

“Ultimately it’s this court that’s going to decide that question of federal constitutional eligibility,” Murray said.

In response to the last question directed to him, Trump’s lawyer argued that the events of Jan. 6 did not qualify as an insurrection.

Justice Jackson said it did, asking, “What is your argument that this is not an insurrection?”

“For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence,” Mitchell said.

He went further, “We didn’t concede that it’s an effort to overthrow the government either. None of these criteria were met. This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things but did not qualify as an insurrection as that term is used in Section 3.”

A group of 16 journalists is standing outside in a courtyard surrounded by palm trees outside the front entrance of Mar-a-Lago waiting for a press conference with former President Donald Trump.

Trump is expected to address reporters at Mar-a-Lago in response to the arguments before he heads to Nevada for Thursday night’s caucuses.

Trump’s attorney has suggested that requiring Congress to set up a procedure for determining if Section 3 applies to officials might lessen legal chaos. But Justice Amy Coney Barrett raised the possibility that it could create new chaos.

What if, Barrett suggested, the court agrees that only Congress can create a procedure to implement Section 3? And what if a future Congress creates one after Trump becomes president? Then it could apply it to him and remove him from the presidency without impeachment, right?

“I don’t know how that’d play out,” Mitchell said.

They talked about the possibility for a while, but there was no certainty from either party. That’s how it’s gone so far.

Justice Samuel Alito suggests that if the Colorado ruling stands, other states can also launch their own judicial proceedings about Trump’s qualifications.

Imagine, Mitchell says, if those judges elsewhere come to different conclusions than in Colorado — that Trump did not intend for Jan. 6 to become an insurrection, for example.

Left unsaid is the obvious — that’d create a wild legal checkerboard of decisions across the country.

Thomas asked Mitchell whether Congress needs to pass legislation for Section 3 to work.

“It is entirely up to Congress,” Mitchell responded.

In a sign of how weird this case is, he’s citing an 1869 case decided by a then-supreme court justice who was acting as an appeal judge. There’s very little precedent here.

Arguments began with Trump’s attorney, Jonathan Mitchell, making his initial statement. “The Colorado supreme court’s decision is wrong and should be reversed for numerous, independent reasons,” Mitchell said.

Just in case there isn’t enough suspense today, the court’s historic arguments will be slightly delayed because the justices are issuing rulings on additional cases first.

The court has a backlog of decisions to issue. They’ve only put out one from this term so far. Reflecting the historic nature of the 14th Amendment challenge, they rushed to schedule Thursday’s hearing to help them deal with this case quickly. But before the arguments kick off at the scheduled 10 a.m. Eastern time, they’ve got to get some stuff off their plates first.

Both sides in the case want the Supreme Court to issue a definitive ruling quickly rather than kick the can down the road closer to the election. There’s another constituency pushing for that too — election officials.

Adrian Fontes, Arizona’s Democratic Secretary of State, said voters “need to know who they can vote for.”

“The court needs to act very quickly, and the court needs to act decisively,” said Frank LaRose, Ohio’s Republican Secretary of State, in an interview.

“It’s the responsibility of the United States Supreme Court to provide that clarity for election officials and voters and do that without delay,” said Jocelyn Benson, Michigan’s Democratic Secretary of State.

A bank of television cameras and journalists stood outside the barriers on the sidewalk closing off pedestrian access to the building. Adjoining streets were shut down for security and officers stood watch on both the courthouse steps and the building’s roof.

A small clutch of about a half-dozen protesters stood by the barriers in front of court with handwritten signs declaring, “Trump is a Traitor!”

Interest in the case was so high that people began lining up outside the day before to sit in the courtroom when the justices hear arguments Thursday morning.

Miriam Minner and two of her friends from Cleveland had been waiting since Wednesday to get in.

“My dear friends and I are really big nerds and wanted a really cool experience,” Minner said.

“This is a landmark decision,” said Susan Acker of Cincinnati, “and I want to be in the room where it happens.”

Both sides have agreed that the justices should issue a conclusive ruling soon. And the court is moving much faster than usual in scheduling arguments.

So a decision relatively soon is possible, if not likely, but the exact timing isn’t clear.