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Supreme Court will decide if Trump can stay on 2024 ballots

The US Supreme Court has agreed to hear Donald Trump’s appeal of a Colorado court decision that found him constitutionally ineligible for the presidency for his actions surrounding the attack on the US Capitol on January 6.

A historic ruling from the Colorado Supreme Court in December disqualified the former president from appearing on 2024 presidential ballots, teeing up a politically explosive case at the nation’s highest court, where three of the justices were appointed by Mr Trump.

The Supreme Court will now review the Colorado court’s ruling that Mr Trump is ineligible under Section 3 of the 14th Amendment, which prohibits anyone who has sworn an oath to uphold the Constitution and “engaged in insurrection or rebellion” from holding public office.

The case – Trump v Anderson – follows more than a dozen lawsuits challenging Mr Trump’s eligibility to appear on 2024 ballots under the provisions of the 14th Amendment.

Supreme Court justices will hear oral arguments on the Colorado case on 8 February, according to a court notice one day before the three-year anniversary of the Capitol assault.

The case is among at least two major constitutional questions surrounding Mr Trump’s intersecting campaign and legal battles that are headed to the high court.

After initially rejecting a request to hear the case before appeals court judges had a chance, the justices are likely to review whether Mr Trump has presidential “immunity” from charges connected to his attempts to overturn the 2020 presidential election.

That “immunity” question will be heard by a three-judge federal appeals court panel next week, and a likely appeal of that decision is expected to land right back at the Supreme Court.

A mob loyal to Donald Trump stormed the US Capitol on 6 January, 2021 while Congress convened to certify the results of the 2020 presidential election. (AP)
A mob loyal to Donald Trump stormed the US Capitol on 6 January, 2021 while Congress convened to certify the results of the 2020 presidential election. (AP)

On 19 December, Colorado’s highest court determined that “President Trump did not merely incite the insurrection.”

“Even when the siege on the Capitol was fully underway, he continued to support it,” they continued. “These actions constituted overt, voluntary, and direct participation in the insurrection.”

The top elections official in the state of Maine has similarly ruled that Mr Trump is ineligible to appear on the state’s ballots in 2024, making Maine the second state to reach that conclusion.

Maine Secretary of State Shenna Bellows, who received three separate challenges to Mr Trump’s ballot eligibility, was obligated to hear those challenges and decide on them.

In her decision on 28 December, she said she “did not reach this conclusion lightly” and recognised the unprecedented nature of the case.

“The events of January 6, 2021 were unprecedented and tragic,” she wrote. “They were an attack not only upon the Capitol and government officials, but also an attack on the rule of law. The evidence here demonstrates that they occurred at the behest of, and with the knowledge and support of, the outgoing president.”

The Constitution, she said, “does not tolerate an assault on the foundation of our government.”

Mr Trump’s attorneys have also appealed that decision to Maine’s superior court, claiming that the process was “infected by bias and pervasive lack of due process” and “is arbitrary, capricious, and characterized by abuse of discretion” and “unsupported by substantial evidence on the record.”

House Democrats have urged Supreme Court Justice Clarence Thomas, left, to recuse himself from a case involving Donald Trump’s ballot eligiblity, citing his wife, Ginni Thomas, right, who promoted false election claims. (REUTERS)
House Democrats have urged Supreme Court Justice Clarence Thomas, left, to recuse himself from a case involving Donald Trump’s ballot eligiblity, citing his wife, Ginni Thomas, right, who promoted false election claims. (REUTERS)

The 14th Amendment was among a suite of civil rights amendments enacted in the volatile aftermath of the US Civil War to block Confederates from entering a government they fought a war against while enshrining equal protection under the law to all citizens, including formerly enslaved people.

Section 3 of that amendment effectively enshrined what President Abraham Lincoln had declared before Congress after the first shots of the war were fired in 1861.

A question of whether the American experiment could survive against “an internal attempt to overthrow it” remained in dispute, according to Lincoln, and “it is now for them to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion; that ballots are the rightful and peaceful successors of bullets, and that when ballots have fairly and constitutionally decided there can be no successful appeal back to bullets; that there can be no successful appeal except to ballots themselves at succeeding elections.”

Section 3’s authors argued during congressional debate that the rules apply to anyone who took an oath of office, including the president, which attorneys for Mr Trump and right-wing legal analysts have disputed, by pointing to language that he is neither an “officer under the United States” nor an “officer of the United States”.

In their appeal to the Supreme Court, Mr Trump’s attorneys argued that “the question of eligibility to serve as President of the United States is properly reserved for Congress, not the state courts, to consider and decide.”

“By considering the question of President Trump’s eligibility and barring him from the ballot, the Colorado Supreme Court arrogated Congress’ authority,” they wrote.

Attorneys for Mr Trump also argued that the presidency sits “outside the scope” of Section 3, that the attack on the US Capitol on January 6 was not an “insurrection” and that Mr Trump “in no way ‘engaged’” with it.

A group of House Democrats have urged Supreme Court Justice Clarence Thomas to recuse himself from the Colorado case, arguing that his “impartiality is reasonably questioned by substantial numbers of fair-minded members of the public” following false election claims from his wife Virginia “Ginni” Thomas during the 2020 election, “and the financial incentive it presents for your household if President Trump is re-elected.

Those elements are “disqualifying,” they wrote on 4 January.

A 4-3 ruling from Colorado Supreme Court justices on 19 December determined Donald Trump is disqualified from public office under the 14th Amendment. (via REUTERS)
A 4-3 ruling from Colorado Supreme Court justices on 19 December determined Donald Trump is disqualified from public office under the 14th Amendment. (via REUTERS)

A lawsuit filed last September by a government watchdog group on behalf of a group of Colorado voters argues that Mr Trump had “failed” Section 3’s test, rendering him “constitutionally ineligible to appear on any Colorado ballot as a candidate for federal or state office”.

Following a trial, Colorado District Judge Sarah Wallace found that not only did Mr Trump incite the attack on the Capitol in an effort to block the peaceful transfer of power after the 2020 election, but he also “engaged” with it.

Mr Trump “acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification,” she wrote.

Her ruling, however, stopped short of disqualifying the former president.

But after arguments on appeal to the state’s highest court in December, Colorado justices wrote in a 4-3 majority opinion that Mr Trump’s “direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary.”

Two parallel criminal cases – one in a state court in Atlanta, Georgia and another at the federal level in Washington DC – have charged the former president with engaging a criminal enterprise to unlawfully overturn the results of the 2020 election, culminating in his refusal to stop the mob from breaking into the halls of Congress to do it by force.