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  • Curt Levey

Colorado’s Bad Day at Supreme Court in Ballot Case

Committee for Justice president Curt Levey issued the following statement about today's oral argument in the Supreme Court:


It was not a good day at the Supreme Court for those hoping that Colorado’s disqualification of Donald Trump from its ballot would be upheld. Today’s oral argument left little doubt that the Court will rule against Colorado in a lopsided decision. Only Justice Sotomayor’s vote appeared to be in question.


It was a particularly bad day for Jason Murray, the attorney representing the plaintiffs, six Colorado voters who challenged Trump’s ballot eligibility. He was called out by Justices Alito and Gorsuch for avoiding their questions, and Gorsuch caught Murray in a question he struggled to but effectively failed to answer. If Murray is correct that Section 3 of the Fourteenth Amendment is self-executing and Trump has thus been disqualified to hold office since January 6, 2021, Gorsuch asked, doesn’t that mean that President Trump’s official acts during his final two weeks in office are invalid?


More fundamentally, Murray tried but failed to convince the justices that what happened on January 6—what Murray called a violent attack on Congress incited by Trump—was so extraordinary that their doubts about ruling in Colorado’s favor should fade away. When Murray argued that the Court could rule for Colorado based on Trumps’ own words, Justice Barrett asked “So you want us to watch the [January 6] Ellipse video?”


While there were more technical legal arguments, the justices’ concerns about Colorado’s disqualification of Trump focused on its unprecedented nature, its effective disenfranchisement of voters in Colorado and—in a close election—other states as well, the possibility of retaliation by red states, and more generally, the impracticality of different standards in different states.


For example, Justices Kagan and Jackson pointed out the need for national uniformity, which cannot be achieved if each state can determine when Section 3 disqualifies a presidential candidate.


Kagan said it seemed “extraordinary” that a single state should get to decide who would be president, which “affects everyone else’s rights.” Jackson, noting that the list of offices in Section 3 does not include the presidency, asked Murray why he was telling the Court to construe that omission “against democracy.”


Both Murray and Colorado Solicitor General Shannon Stevenson portrayed Trump’s removal from the ballot as just another case of a state determining who qualifies for its ballot. But Justice Kagan pointed out that the “political” nature of this situation makes it very different.


Although the grounds on which the Court will rule are up in the air, it would be very surprising if Justices Kagan and Jackson do not join the six center-right justices in ruling against Colorado.




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