Washington — The Supreme Court is set to convene Thursday for oral arguments over whether former President Donald Trump is eligible for a second term in the White House, a dispute that puts the nine justices into new legal territory and could have sweeping implications for the 2024 presidential race.
The case before the high court, known as Trump v. Anderson, involves whether Trump is disqualified from holding the presidency again because of his conduct surrounding the Jan. 6, 2021, assault on the U.S. Capitol. The outcome is expected to reverberate across all 50 states, since it could clarify whether Trump can be included on the primary and general election ballots.
Oral arguments are set to begin shortly after 10:30 a.m. and audio will be live-streamed in the player at the top of this page. Eighty minutes are allotted, though the proceedings are expected to last longer. Jonathan Mitchell, a Texas-based attorney, is arguing on behalf of Trump, and Jason Murray, who practices in Denver, is appearing for the six Colorado voters who challenged Trump’s eligibility. Colorado Solicitor General Shannon Stevenson will also argue for Secretary of State Jena Griswold.
The Colorado Trump lawsuit
The battle arose out of the lawsuit the Colorado voters filed in the fall, which invoked a rarely used provision of a constitutional amendment passed in 1868 that was designed to keep former Confederates from holding public office.
Known as the insurrection clause, Section 3 of the 14th Amendment had never in the nation’s history been used to disqualify a presidential candidate. But in December, the Colorado Supreme Court issued a landmark decision concluding that Trump was barred from holding office because of his actions surrounding Jan. 6. The court, which divided 4-3, ordered his name to be withheld from the state’s GOP presidential primary ballot.
The decision led to the high-stakes legal battle now before the Supreme Court, which has a 6-3 conservative majority and includes three justices appointed by Trump himself. The case presents a number of untested legal questions for the justices to consider and propels the nation’s highest court into a politically fraught dispute just as millions of voters prepare to cast their ballots for the 2024 presidential election.
Trump has already won the first two contests in the Republican presidential primary, in Iowa and New Hampshire. In Colorado, ballots listing his name have been printed ahead of its March 5 primary, when more than a dozen states also hold their GOP primaries.
It has been more than two decades since the Supreme Court has been so centrally involved in a presidential election — its ruling in the case Bush v. Gore effectively decided the 2000 race for Republican George W. Bush, and the decision left the high court mired in political controversy. Justice Clarence Thomas is the only member who was on the court then and remains today.
Why are Colorado voters challenging Trump’s ballot eligibility?
The case before the Supreme Court was brought by the group Citizens for Responsibility and Ethics in Washington on behalf of four Republican and two unaffiliated voters in Colorado in September 2023. The voters argued that Trump is ineligible from holding the presidency under Section 3 and should be excluded from the Colorado primary and general election ballots.
The provision bars an individual who swore an oath to support the Constitution and then engaged in insurrection against it from holding federal or state office. The voters claimed that Trump instigated the Jan. 6 attack as part of his efforts to subvert the transfer of presidential power after the 2020 election, and therefore is disqualified from holding public office.
After a five-day trial in Denver, a state court judge found that Trump engaged in insurrection through incitement, but ordered his name to be listed on Colorado’s GOP primary ballot after determining that Section 3 does not apply to the presidency and the former president.
The voters and Trump appealed the decision to the Colorado Supreme Court, composed of seven justices appointed by Democratic governors. The state’s highest court issued a 4-3 decision in December reversing the district court’s reasoning about the scope of Section 3 and concluding that Trump is ineligible for the White House. Though the Colorado Supreme Court said Trump’s name cannot be listed on the primary ballot, it paused its decision to allow him to appeal to the nation’s highest court.
On the heels of the Colorado ruling, the secretary of state in Maine determined that Trump is barred from holding office and should be excluded from the primary ballot. A state court, though, paused that decision and ordered the secretary to reconsider her finding once the Supreme Court rules.
The Trump Supreme Court case
The Supreme Court will consider whether the Colorado court was wrong to order Trump excluded from the ballot, and his lawyers have raised a number of issues for the justices to weigh: whether Section 3 applies to Trump as a former president; whether he engaged in insurrection; and whether state and federal courts can even enforce the provision without legislation from Congress.
Trump’s legal team also argues that the provision cannot be used to deny him access to the ballot because it prohibits a person only from holding office, not running as a candidate or winning election.
A majority of the justices need to side with the former president on any one of these matters for him to prevail.
“The court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots,” his lawyers told the justices in their opening brief.
The voters, though, are urging the Supreme Court to uphold the Colorado ruling, arguing that Trump betrayed his oath to preserve, protect and defend the Constitution by inciting a violent mob to attack the Capitol in an attempt to stop the counting of electoral votes cast against him.
“The thrust of Trump’s position is less legal than it is political. He not-so-subtly threatens ‘bedlam’ if he is not on the ballot. But we already saw the ‘bedlam’ Trump unleashed when he was on the ballot and lost,” their lawyers wrote. “Section 3 is designed precisely to avoid giving oath-breaking insurrectionists like Trump the power to unleash such mayhem again.”
The voters warned the Supreme Court against waiting until after the November election to determine Trump’s eligibility, and said a decision finding that Section 3 cannot be used at this stage would be “disastrous.”
“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,” their lawyers wrote.
It’s unclear how quickly the justices will issue their decision, though all parties have urged them to rule on Trump’s eligibility swiftly.