Explainer: What’s at Stake in the US Supreme Court’s Hearing on Trump’s Ballot Eligibility After Capitol Attacks? Features
MarkThomas / Pixabay
Explainer: What’s at Stake in the US Supreme Court’s Hearing on Trump’s Ballot Eligibility After Capitol Attacks?

The US Supreme Court is set to hear oral arguments this week in a landmark case that will determine whether states are entitled to remove former president and current Republican frontrunner Donald Trump from election ballots over his actions on Jan. 6, 2021, when the US Capitol was stormed by protesters.

In anticipation of the Trump v. Anderson hearings, we have compiled a comprehensive explainer of the case, which — though brought by Colorado — is expected to have a national impact. Read on to learn more about the legal questions at the heart of the case, the case’s origins, the parties involved, and what advocates on both sides of the spectrum believe is at stake for the country.

What specific issue is the Supreme Court being asked to decide regarding former President Donald Trump’s eligibility for the ballot?

As explained in greater detail below, the case before the Supreme Court centers on the applicability of Section 3 of the 14th Amendment to the US Constitution. This is the first time Section 3 has been applied in modern history.

This provision, often referred to as the Insurrection Clause, states:

No person 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, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Supreme Court is being asked to consider whether states are authorized to exclude Trump from presidential ballots based on his alleged role in the Capitol attacks of Jan. 6, 2021. In particular, the former president asked:

Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?

What is the background of the case, and how did it come before the Supreme Court?

At the heart of the lawsuit were the events of Jan. 6, 2021, when supporters of then-president Trump stormed the US Capitol building, resulting in vandalism, theft, injuries, and ultimately, multiple deaths broadly seen as having been connected to the uprising.

Trump v. Anderson began in September 2023, when a group of Colorado voters sued the former president to have him removed from the ballots for the 2024 presidential election. Among the plaintiffs is Norma Anderson, a 91-year-old retired lawmaker who previously served as a Republican member of Colorado’s House of Representatives and Senate.

The group of voters argued Trump no longer qualified to be on the ballot because he violated the insurrection clause.

In particular, the initial lawsuit contended that Trump encouraged supporters to come to the nation’s capital and that these supporters then “engaged in actual violence and made threats of imminent violence,” resulting in an insurrection. Additionally, the lawsuit contended that members of the executive, legislative, and judicial branches have all referred to the events of Jan. 6 as an insurrection, including bipartisan congressional groups.

Ultimately, this lawsuit reached the Colorado Supreme Court, which ruled that Trump would be disqualified from the 2024 ballot. Specifically, the Colorado Supreme Court found that the office of the president does fall under the requirements of section three, and thus applies to Trump because he previously held office as president, that Trump did engage in an insurrection on Jan. 6, and that Trump’s speech that day was not protected by the First Amendment to the US Constitution, which protects free speech.

The much-contested standard the Colorado Supreme Court laid out for what constitutes an insurrection was a “concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”

Following this decision, both the Colorado Republican State Central Committee and Trump himself asked the US Supreme Court to hear the case.

What did Trump argue when seeking a Supreme Court review?  

In seeking a Supreme Court review of the case, Trump asked that the Colorado Supreme Court’s decision be overturned in the name of returning to the voters “the right to vote for their candidate of choice.”

In his petition for writ of certiorari to the US Supreme Court, Trump argued that at issue in the case were questions for Congress, that the insurrection clause does not apply to him, that he did not engage in insurrection, and that the relevant provision merely prevents people from holding office, not running for office.

In particular, Trump implored the US Supreme Court to invoke the political questions doctrine, ordering that the question of his eligibility as a presidential candidate is a question strictly left for Congress, not the courts, to decide. This argument hinges on the separation of powers doctrine enshrined in the US Constitution, which states that the executive, legislative, and judicial branches all have distinct powers separate from one another.

Trump further asserted that federal courts that considered the eligibility of past candidates such as former president Barack Obama held that Congress — not the courts — was the entity to decide such questions.

He argued that section three does not apply to him because the presidency is not included in the list of offices that fall under the restriction imposed by section three. The amendment lists “Senator or Representative in Congress, or elector of President and Vice-President,” or “any office, civil or military, under the United States, or under any State.” Therefore, Trump argued, the president does not fall under the list of offices.

In his claim that he did not engage in an insurrection, Trump looked at the understanding of the word “insurrection” at the time the Fourteenth Amendment was adopted —1868, shortly after the Civil War. At this time, Trump argued that insurrection was understood as meaning “the taking up of arms and waging war on upon the United States.” Thus, because Trump did not take up weapons and “wage war” against the US, he contended he did not commit insurrection under the amendment.

The final core argument is that the insurrection clause merely prevents people from holding office, not from appearing on election ballots. This, he argued, would require people to prove before the election that they are not disqualified, adding a “new, extra-constitutional requirement to running for office” which could be burdensome to candidates.

Did the Colorado Republican State Central Committee include additional arguments in their appeal to the Supreme Court?

The Colorado Republican State Central Committee (CRSCC) also filed a petition for writ of certiorari because they are also a party involved in the lawsuit. CRSCC’s petition closely matches Trump’s arguments, also claiming that section three is only a qualification for holding office, not running for office. Additionally, they made a parallel argument that the Colorado Supreme Court did not have the authority to “add” a step for qualifying to run for president. The most notable argument from the CRSCC is their claim that the Colorado Supreme Court violated the First Amendment’s right to association. Specifically, they cite US Supreme Court precedent that the First Amendment protects political parties, namely “the freedom to join together in furtherance of common political beliefs.” This translates to this case because, as the CRSCC claimed, it impedes members of the Republican party from freely selecting their own candidates for president. 

How did the Colorado voters who initially brought the case respond to these arguments?

The Colorado voters argued that the question does not fall under the political question doctrine because they read Article II of the Constitution, which concerns state electors, as providing states the authority to restrict candidates’ access to the ballot if the candidates do not meet constitutional requirements. The group also argued that the office of the president does fall under section three because the president is an “officer” of the US and takes an oath to “preserve, protect, and defend the Constitution.” Looking outside the text of just the Fourteenth Amendment, the voters pointed to other instances in the Constitution that directly refer to the president as an officer of the United States, including Article I, Section 3, Clause 7, known as the impeachment clause. Third, the voters stated that states are able to remove candidates from the ballot if they violate section three at the ballot stage, before they reach the point of holding office. Fourth, the group argued that congressional legislation is not the only way to implement section three’s restrictions on candidates. Finally, they asserted that Trump did engage in an insurrection for the purposes of section three by quoting prior Supreme Court precedent from 1862 which laid down the standard for what constitutes an insurrection, “Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government.” This language challenges Trump’s reading of insurrection as “taking up of arms and waging war against the US.”  The group also pointed to other language scaling back Trump’s definition of an insurrection, with one definition from a case from 1800 stating an insurrection is merely “to resist, or to prevent by force or violence, the execution of any statute of the United States.”  

What have others said in support of the two sides?

Amicus curiae in support of the Colorado voters:

Various individuals and groups submitted amicus curiae briefs, known as friend of the court briefs. These briefs are often offered by experts in a particular field to help the court make its final decision.

A group of notable legal figures filed an amicus brief in favor of the Colorado voters. Some of the individuals include former Fourth Circuit Court of Appeals Judge Michael Luttig and District of Columbia Circuit Court of Appeals nominee Peter Keisler, who was nominated by former President George W. Bush. Essentially, their arguments were that this is not a political question, but rather a question the Supreme Court has the power to decide because the Constitution does not explicitly grant Congress the sole power to decide on whether a presidential candidate qualifies under section three. Additionally, they claimed that the office of the president does fall under section three and that Jan. 6, 2021, was an insurrection due to its “armed attempt to prevent the peaceful transfer of executive power.”

Historians also filed an amicus brief against Trump that laid out the history of the Fourteenth Amendment as it relates to the Civil War. Specifically, they pointed to a case involving Jefferson Davis, the former president of the Confederate States of America. The historians explained that “obstacles to prosecuting Davis had made it increasingly likely that he would not be convicted on treason charges, thus underscoring the need for Section Three.” Because there was a fear that Davis would not be convicted for treason, and thus section three was born, the historians argued that this shows that a criminal conviction for insurrection is not required to remove a president from the ballot.

Amicus curiae in support of Trump:

Over 170 members of Congress filed an amicus brief in support of Trump, led by Senator Ted Cruz (R-TX) and House Majority Leader Steve Scalise (R-LA). While the members of Congress’ brief echoed many of the arguments put forth by both Trump and the CRSCC, it raised an argument concerning partisan politics. The members of Congress contended that the Colorado Supreme Court unjustly expanded the definition of insurrection, which will in turn lead to states removing candidates from the ballots due to partisan politics. For example, the members questioned if Hilary Clinton’s statements that Trump “stole” the 2016 election from her would hypothetically be enough to block her from future ballots. Similarly, more than 25 other states also filed an amicus brief in support of Trump, including West Virginia, Indiana and Arizona. Their brief specifically asked the court to return the question to Congress and to do away with the “standardless political judgment” the Colorado Supreme Court laid down when it defined insurrection.

What are legal scholars saying?

A plethora of academics have contributed to analyzing this unprecedented legal question, providing insight into section three of the Fourteenth Amendment. For example, Georgia State University College of Law Professor Eric Segall called on Congress to use its legislative powers to allow Trump to remain on the ballot. Specifically, section three contains one sentence that allows a two-thirds vote by Congress to override the roadblock set in place by the insurrection clause. Capital University Law School Professor Mark Brown argued that states have the right to take Trump off their ballots, explaining that the right for state election officials to disqualify candidates from its ballots is unquestionable

Why is this case such a big deal?

Though the questions before the Supreme Court originate in Colorado, the court’s ruling will have a national impact given the fact that more than half of the states in the US have grappled with the legality of disqualifying Trump from the presidential ballots.

In total, at least 35 states have been subject to efforts to remove Trump from their ballots, per the New York Times.

People in all branches of government and civic life have been involved in this ongoing legal dilemma, as well. Voters in Massachusetts filed a lawsuit seeking to remove Trump from the state’s presidential ballot last month. California lawmakers sent a letter to the state’s attorney general suggesting that allowing Trump’s name on the ballot would be unconstitutional.

Other states have ruled on whether Trump will appear on their 2024 ballots. Most recently, a judge in Washington State and the Illinois State Board of Elections both allowed Trump to remain on the ballots. Both the Minnesota Supreme Court and Michigan Supreme Court also permitted Trump to stay on its ballots. Another lawsuit seeking to remove Trump from the West Virginia ballot was dismissed last year. Maine’s secretary of state disqualified Trump from the state’s primary ballot, prompting an appeal filed by Trump and a subsequent legal skirmish over the appeals court’s delay of its ruling on Trump’s ballot eligibility.

What are the next steps in the legal process following the Supreme Court’s oral arguments and eventual ruling?

An opinion is expected before presidential primary voting begins in Colorado in March.

Marissa Zupancic is JURIST’s Washington Correspondent, currently stationed in Washington, D.C. She will attend the oral argument in front of the Supreme Court on Feb. 8, 2024 as a member of the press.