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The Supreme Court will hear oral arguments on Thursday in what is shaping up to be the most significant election case since Bush v. Gore nearly 25 years earlier. The question is whether former President Donald Trump, who is now again the front-runner for the Republican presidential nomination, may be disqualified from the ballot due to his role in the Jan. 6, 2021, attacks on the United States Capitol.

Although the matter is raised in a Colorado case, the court’s decision may have far-reaching consequences. Maine’s secretary of state determined in December that Trump should be removed from the primary ballot, and challenges to his eligibility are presently pending in 11 additional states.

Trump cautions that efforts to remove him off the ballot “threaten to disenfranchise tens of millions of Americans” and “promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead.” However, supporters opposing Trump’s eligibility argue that “we already saw the ‘bedlam’ Trump unleashed when he was on the ballot and lost.”

History of the case

The dispute hinges on the interpretation of a relatively obscure provision of the Constitution: Section 3 of the 14th Amendment, which (as relevant in this case) states that no one “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,

” if the person had previously sworn “as a member of Congress or as an officer of the United States” to uphold the US Constitution but later “engaged in insurrection or rebellion” against the federal authority.

Section 3, enacted in the aftermath of the Civil War, was designed to exclude anyone who had previously served in the federal (or state) government and sworn to preserve the Constitution but later backed the Confederacy. The service restriction can only be lifted with a two-thirds vote in both the House of Representatives and the Senate.

Although Section 3 had been inert for much of its existence, there was fresh interest in it following the January 6 attacks on the Capitol.

Attempts to use Section 3 to disqualify officials for their involvement in the attacks have met with different degrees of success. Georgia officials rejected a challenge to the eligibility of United States Representative Marjorie Taylor Greene in 2022. A state administrative law court acknowledged that Greene’s “heated rhetoric may well have contributed to the environment that ultimately led to” the Capitol attack, but he determined that she did not engage in an insurrection.

In September 2022, a New Mexico court declared that Couy Griffin could not serve as a county commissioner since he took part in the Capitol attack on January 6. Griffin, the founder of an organization named Cowboys for Trump He received a 14-day prison sentence after being convicted of entering and residing on restricted grounds. (The Supreme Court is set to hear Griffin’s petition for appeal of the state court’s decision on February 16.)

In 2022, a federal appeals court permitted a dispute over the eligibility of U.S. Representative Madison Cawthorn to proceed. However, by the time the United States Court of Appeals for the Fourth Circuit released its decision in Cawthorn’s appeal, he had already lost the primary.

Earlier efforts to keep Trump off the ballot failed. In November 2023, for example, the Minnesota Supreme Court rejected a bid to remove Trump from the state’s ballot. It does, however, leave the door open for the challengers to attempt to remove Trump from the general election ballot after the primaries.

On December 27, the Michigan Supreme Court declined to appeal a lower court judgment allowing Trump to be on the state’s primary ballot. As in Minnesota, the lower court’s decision does not preclude another challenge to Trump’s inclusion on the general election ballot.

The case currently before the Supreme Court was the first to rule that Trump was ineligible to run on the ballot in 2024. It was submitted in early September 2023 by six Colorado individuals who might vote in the state’s Republican primary. Citizens for Responsibility and Ethics, among other lawyers, represent the voters in Washington.

an ethical watchdog group that sued Trump while he was still in the White House, accusing him of breaking the Constitution’s prohibition on accepting payments from foreign and state governments by operating a hotel in Washington, D.C.

After a five-day hearing, a Colorado trial judge agreed that Trump committed rebellion but determined that Section 3 does not apply to the president. The presidency is not a “office … under the United States,” nor is the president a “officer of the United States.” The Colorado Supreme Court concluded on December 19 that Trump is ineligible to be president under Section 3, and it blocked the Colorado secretary of state, Jena Griswold, from including him on the primary ballot.

However, the state supreme court postponed its decision to let the Supreme Court to weigh in, thus Trump remains on the ballot for the time being. Both Trump and the Colorado Republican Party petitioned the high Court to review the state high court’s verdict. On Jan. 5, the United States Supreme Court granted Trump’s petition for review and set oral argument for Feb. 8, when the justices would otherwise be on winter break.

Jonathan Mitchell, the author of Texas’ notorious six-week abortion ban, represents Trump on the Supreme Court. He offers a barrage of diverse challenges, some of which are based on the text of Section 3 of the Colorado Supreme Court’s decision. If the Supreme Court rules for these reasons, Trump will remain on the ballot.

The voters encourage the court to affirm the Colorado Supreme Court’s judgment, emphasizing that “[n]obody, not even a former President, is above the law.” “By spearheading a violent attack on the Capitol in violation of his sworn oath to defend the Constitution,” they claim, “Trump disqualified himself from holding public office.”

Officer of the United States

Trump’s first and most important argument is that Section 3 does not apply to him since the president is not a “officer of the United States.” In other portions of the Constitution where the phrase “officer of the United States” appears, Trump observes,

It does not apply to the president, as evidenced by the provision requiring the president to “Commission all the Officers of the United States” and the impeachment clause, which separates the president and vice president from “civil Officers of the United States.” Furthermore, Trump points out that the Supreme Court ruled in 2010 that the phrase only applies to appointed federal officials and not to elected officials such as the president.

The voters dismiss this argument, pointing out that the president has been referred to as the “chief executive officer of the United States” since long before the 14th Amendment was enacted. As for the word “office under the United States,” they say,

Section 3 merely uses the term “of the United States” to distinguish between federal positions, such as the presidency, and state officers.

The voters also dismiss Trump’s reliance on other parts of the Constitution. They point out that, while the appointments clause requires the president to appoint some “officers of the United States,” it also indicates that the electoral college can appoint other “officers of the United States” – including the president and vice president. And, they argue, the impeachment clause allows for the impeachment of the president and vice president separately from “all civil officers of the United States” since the president and vice president, unlike other authorities, serve both civil and military functions.

Section 3 also does not apply to him, Trump adds, because when he is sworn in, the president promises to “preserve, protect, and defend the Constitution” rather than “support” it, as Section 3 demands.

The voters, however, argue that “Section 3 is about violation of a sworn duty, not about pedantic wordplay.” They argue that the president’s promise to “preserve, protect, and defend” the Constitution is actually a duty to support it.

The voters add that an interpretation of Section 3 that excludes the president while still applying to all other authorities – including “postmaster or county sheriff” – who swore an oath to protect the Constitution and then engaged in insurrection would contradict the provision’s intent. Furthermore, they propose,

Trump would be the lone exception, as “every other President (except, of course, George Washington) had previously sworn a constitutional oath in some other federal or state capacity.”

Trump denies that holding that the president is outside the purview of Section 3 would be inconsistent with the intent of the provision. When the 14th Amendment was passed, he claims, there were no prior presidents who supported the Confederacy, thus the drafters had no cause to prevent the president from serving again

Whether Trump “engaged in insurrection”

Although Trump had claimed in an earlier brief that Jan. 6 was not a “insurrection,” he now simply claims that Section 3 does not apply to him. Because he did not “engage in” the insurrection. Trump claims he never encouraged his supporters to enter the Capitol on January 6, and he did not lead or promote any of the violence that occurred that day. To the contrary, in his speech at the Ellipse on Jan. 6, he urged the audience to “peacefully and patriotically make your voices heard” and “support our Capitol Police and Law Enforcement.”

Trump adds that even if he did not reply when protesters invaded the Capitol, this does not constitute “engaging” in rebellion. Furthermore, he states that, despite being the focus of multiple investigations since 2021, he has never been charged with insurrection.

The voters argue that Trump has “no serious defense” to the question of whether he “engaged in insurrection.” They argue that Trump’s claim that he just called for “peaceful and patriotic protest” contradicts the trial court’s thorough findings, which ruled that Trump’s acts and remarks “were the factual cause” of the attack. They emphasize that Trump “incited violence both explicitly and implicitly during his speech at the Ellipse,” and he continued to do so after the mob had breached the Capitol, identifying former Vice President Mike Pence on social media as someone who “didn’t have the courage to do what should have been done.”

Similarly, voters reject Trump’s claim that he could not have “engaged in” revolt because he did not take part in the Capitol attacks. They cite rulings interpreting Section 3 by Henry Stanbery, who served as attorney general in 1867, which stated that someone can “engage in” rebellion without actually picking up arms. Indeed, they argue that limiting Section 3 to those who conduct violence would undermine “a core purpose of” the provision, which is to target leaders rather than foot troops. “Leaders rarely take up arms,” the voters note.

Trump argues that Section 3 can only be enforced by Congress by legislation, not automatically.

Nothing in Section 3 gives direction for judges and election officials to employ in determining whether someone “engaged in insurrection” and hence ineligible to run for office, he observes. If Section 3 were self-executing, Trump warns, courts would be able to make biased decisions regarding whether someone is disqualified under Section 3.

Trump cites Griffin’s Case, an 1869 judgment by Chief Justice Salmon P. Chase, who served on the Court of Appeals. Chase declined to overturn the conviction of a Virginia man who claimed that the judge in his case was a separatist. Instead, Chase ruled that Section 3 is not self-executing and may only be implemented by legislation passed by Congress.

Indeed, Trump adds, Congress did pass legislation to implement Section 3: the Enforcement Act of 1870, which empowered the Department of Justice to file cases trying to dismiss unqualified officials. But that statute was eliminated in the 1940s, Trump informs the justices.

The voters dismiss the notion that Section 3 can only be implemented through legislation passed by Congress as “beside the point.” They are suing under Colorado state law, requesting that the Colorado secretary of state implement federal constitutional responsibilities.

However, Section 3 operates independently, they maintain, because it clearly prohibits anyone who is disqualified from holding public office. If Section 3 did not operate automatically, they argue, the provision allowing Congress to restore eligibility with a two-thirds majority vote would be superfluous, because Congress could overturn the disqualification as long as a simple majority did not pass any legislation to enforce Section 3.

The people insist that Griffin’s Case does not support Trump’s claim. Among other things, they point out that the ruling does not address whether states such as Colorado can enforce Section 3 under their own laws, and it ignores the fact that Chase later agreed, during the prosecution of Jefferson Davis, that Section 3 is self-executing.

At what point in the process does Section 3 apply?

Trump claims that Section 3 merely prohibits individuals from holding office; it does not prevent them from appearing on the ballot or winning elections. He maintains that states, such as Colorado, cannot establish their qualifications for the presidency, especially when Congress can decide to approve a candidate who would otherwise be ineligible under Section 3.

The voters contend that the Constitution allows state legislatures nearly entire control over how presidential electors are chosen, including allowing only qualified candidates to appear on the ballot. They note that during this election cycle, seven states have already prohibited media star Cenk Uygur who was born in Turkey, was removed from their primary ballots since he is ineligible for the presidency. “To say that resolving Trump’s eligibility must wait until tens of millions of Americans have voted would be a recipe for mass disenfranchisement, constitutional crisis, and the very ‘bedlam’ Trump threatens,” the authors wrote.

The electors clause and Colorado’s electoral code

In addition to being contradictory with the text of Section 3, Trump contends that the Colorado Supreme Court’s decision also violates the Constitution’s electors clause, which mandates states to designate presidential electors “in such Manner as the Legislature may direct,” ” because state election rules do not grant state courts the authority to direct the Colorado secretary of state to remove a candidate from the presidential primary ballot.

According to Trump, Colorado’s election code allows state courts to interfere in vote disputes only when the Colorado secretary of state is ready to violate a duty or do a wrongful act. But there is no wrongdoing here, he claims, because he is eligible to appear on the ballot.

Instead, Trump points out, the state court relied on a Colorado law provision that allows political parties with qualified candidates to participate in primary elections, arguing that the secretary of state would be violating state law if she did not remove disqualified presidential candidates from the primary ballot. Because it “is not remotely what the law says,” Trump claims, the Colorado Supreme Court was “arrogating to themselves the power vested in state legislatures to regulate federal elections,” and the justices should overturn it.

The voters argue that because Trump did not bring this issue in state court, he now lacks the authority to do so. In any case, they argue, the Supreme Court can only interfere if the state court’s interpretation of state law “unconstitutionally intrude[d] upon the role specifically reserved to state legislatures.” This is not the case here, they maintain because the Colorado Supreme Court “correctly concluded it would be a ‘wrongful act’ to certify on the ballot a candidate who is constitutionally ineligible to hold office.”

In addition to the parties to the case, more than six dozen “friend of the court” filings comment on topics ranging from the history of Section 3 to an analysis of efforts to subvert democracy.

One brief, by a group of former attorneys general that includes Edwin Meese and William Barr (who served during the Trump administration), contends that “[w]hatever one thinks of former President Trump’s behavior in the wake of the 2020 election, Section 3 of the Fourteenth Amendment does not disqualify him from the presidential ballot.” The attorneys general warn that if the Supreme Court upholds the Colorado court’s finding, Republican officials may determine that President Joe Biden is ineligible to appear on the ballot according to their understanding.

defining what defines “insurrection,” and they observe that both the Missouri secretary of state and Texas officials have raised the possibility of doing so. Allowing states to make such decisions, they conclude, “is a recipe for chaos, with national implications that could be nothing short of ruinous.”

A different brief, filed by retired Judge J. Michael Luttig (who was on the shortlist for Supreme Court vacancies during the George W. Bush administration) and other former Republican officials, dismisses the suggestion that Section 3 could be used as a partisan tool as an “anti-textual, policy argument” that “has no place in this Court’s constitutional jurisprudence.” As the Court ruled in Dobbs v. Jackson Women’s Health Organization,” they write,

“‘we cannot allow our decisions to be affected by extraneous influences,’ including how the public and politicians may react.” In any case, they say, such an argument turns “the weaponization risk upside down”: Allowing Congress to have “unreviewable power over Section 3 disqualifications” would provide the maximum opportunity for partisan weaponization.

Another brief, filed by three election law academics and lawyers, urges the court to rule on whether Trump is entitled to appear on the ballot, rather than deciding the dispute on other grounds. The failure to rule whether Trump is eligible under Section 3, the brief warns, would “mark a dangerous refusal by the Court to do its duty” and “risk political instability not seen since the Civil War.”

On Friday, the justices extended the oral argument period from 60 to 80 minutes and approved Colorado Secretary of State Jena Griswold’s request to appear. Mitchell, representing Trump, will get 40 minutes to deliver his case, while lawyer Jason Murray, representing the voters, will have 30. Griswold is represented in the Supreme Court by lawyers from the Colorado counsel General’s office; her counsel will have 10 minutes to argue her case. Before the Supreme Court granted review, the challengers requested that the justices give an opinion in the case by February 11, one day before the presidential primary ballots are mailed out in Colorado. With oral arguments set in February.The justices are unlikely to reach the February 11 deadline. Super Tuesday, the day when Colorado, 14 other states, and American Samoa hold their primaries, is March 5, just under a month after the oral argument.

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Ghazala Siddique