Supreme Court says Trump can stay on 2024 ballots but ignores ‘insurrection’ role

The US Supreme Court has determined that Donald Trump can remain on 2024 presidential election ballots across the country, marking a reversal of a landmark Colorado court decision that found him constitutionally ineligible because of his actions on January 6.

But the justices ignored the question at the heart of the case, which revolves around whether then-President Trump “engaged in insurrection” by fuelling a mob that stormed the US Capitol.

Monday’s ruling did not include any discussion on the central premise of the Colorado Supreme Court’s decision, as well as decisions from officials in Illinois and Maine. The justices instead determined that only Congress – not states – has the authority to disqualify candidates for federal office.

A decision was unanimous, but the court’s three liberal justices sharply disagreed that only Congress can act, writing that the court’s conservative majority were attempting “to insulate all alleged insurrectionists from future challenges to their holding federal office”.

“The court has settled a politically charged issue in the volatile season of a presidential election,” Trump-appointed Justice Amy Coney Barrett added in a concurring opinion. “Writings on the court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: all nine justices agree on the outcome of this case. That is the message Americans should take home.”

The decision arrived on a day that the former president was initially scheduled to be tried on criminal charges stemming from his attempts to overturn 2020 results, culminating in his failure to stop the mob on January 6. Last week, the Supreme Court’s decision to hear arguments in Mr Trump’s “immunity” defence in that federal case all but guaranteed that a trial won’t take place until much later this year.

The decision also arrived one day before “Super Tuesday”, when voters in Colorado and 14 other states cast their ballots in primary elections that are likely to affirm Mr Trump’s candidacy as the Republican nominee to face his Democratic rival Joe Biden in November.

“While the Supreme Court allowed Donald Trump back on the ballot on technical legal grounds, this was in no way a win for Trump,” according to Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, which led the lawsuit that challenged Mr Trump’s eligibility in Colorado.

“The Supreme Court had the opportunity in this case to exonerate Trump, and they chose not to do so,” he said in a statement following Monday’s ruling. “Every court – or decision making body – that has substantively examined the issue has determined that January 6 was an insurrection and that Donald Trump incited it. That remains true today. The Supreme Court removed an enforcement mechanism, and in letting Trump back on the ballot, they failed to meet the moment. But it is now clear that Trump led the January 6 insurrection, and it will be up to the American people to ensure accountability.”

Mr Trump himself called the decision “big win for America” on his Truth Social.

The justices appeared to doubt state authority to disqualify Mr Trump from holding public office during an historic two-hour hearing last month, when his lawyers challenged the Colorado Supreme Court ruling with an appeal to the nation’s highest court.

The justices ignored the question of whether then-President Trump ‘engaged in insurrection’ (AFP via Getty)
The justices ignored the question of whether then-President Trump ‘engaged in insurrection’ (AFP via Getty)

Last year, Colorado justices disqualified Mr Trump under Section 3 of the 14th amendment, which holds that “no person” can hold any office, “civil or military, under the United States”, if they “engaged in insurrection or rebellion against the same”.

But both conservative and liberal justices on the nine-member US Supreme Court seemed to argue the authority of individual states to disqualify federal candidates without permission from Congress.

While sparring with lawyers, Chief Justice John Roberts said granting states control over candidates for federal election would be “at war” with the constitution and warned that a decision to disqualify Mr Trump could open up attempts to disqualify candidates “on the other side”.

“In very quick order I would expect … that a goodly number of states will say whoever the Democratic candidate is, you’re off the ballot,” he said. “And it will come down to a handful of states that will determine the presidential election.”

“Why should that be the right rule?” asked Justice Elena Kagan. “Why should a single state make that determination, not just for their own state, but for the whole nation?”

Justices spent relatively little time trying to define “insurrection” let alone whether Mr Trump had “engaged” with it after a mob of his supporters stormed the Capitol to block the certification of 2020 presidential election results, fuelled by his ongoing baseless narrative that the election was “rigged” against him, while calling on his supporters to “fight like hell” on his behalf.

Mr Trump’s attorney Jonathan Mitchell argued that “even an admitted insurrectionist” could still be allowed on the ballot and be elected to office, and that it’s only up to Congress to decide whether that candidate should be removed.

A mob of Donald Trump’s supporters storm the US Capitol on 6 January 2021 (AP)
A mob of Donald Trump’s supporters storm the US Capitol on 6 January 2021 (AP)

“We didn’t concede that it’s an effort to overthrow the government either,” Mr Mitchell said. “This was a riot. It was not an insurrection. The events were shameful, criminal, violent – all of those things. But it did not qualify as insurrection.”

Justice Ketajnji Brown Jackson questioned why the office of the presidency is not explicitly named in the 14th amendment, and doubted whether its authors “would have designed a system that would – could – result in interim disuniformity” in US elections.

Justice Neil Gorsuch argued that the constitution speaks to candidates who “hold” office, as opposed to those who are “running” for office.

But plaintiffs’ attorney Jason Murray said that the “insurrection” disqualifier has “existed since January 6 2021, when President Trump engaged in insurrection”.

The case stems from Crew’s lawsuit on behalf of a group of Republican and independent voters in Colorado, who argued that Mr Trump “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 and arguments from both parties in state court last year, Colorado district judge Sarah Wallace determined that Mr Trump not only “engaged” with insurrection, he also “acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification”.

Her decision, however, did not knock him off the ballot, and plaintiffs appealed the ruling up to the state’s Supreme Court. Those state justices later ruled that Mr Trump’s actions “constituted overt, voluntary, and direct participation in the insurrection”.

The former president appealed that decision to the Supreme Court, which scheduled Thursday’s hearing relatively swiftly, amid a fast-approaching packed primary election calendar against Mr Trump’s busy schedule of multiple criminal and civil cases.

Mr Trump’s legal team will return to the Supreme Court next month to argue that he should have “immunity” from prosecution on charges connected to his attempts to overturn election results.

Norma Anderson – a former Republican state legislator from Colorado who is the lead plaintiff in the challenge against Mr Trump’s appearance on state ballots – told reporters after the hearing last month that the case is “very personal” to her.

“I’ve lived a hell of a long time and I’ve gone through a lot of presidents,” the 91-year-old former lawmaker said outside the court. “And this is the first one that is trying to destroy the constitution.”