Supreme Court Justice Samuel Alito showed just how easily red states could kick President Joe Biden off their states’ ballots if Colorado’s decision to deny former President Donald Trump ballot access is upheld.
In December, the Colorado Supreme Court ruled that Trump, the GOP front-runner in this year’s presidential race, was ineligible to be on the ballot in the state, concluding he participated in an “insurrection” and therefore is disqualified from holding federal office under Section 3 of the Constitution’s 14th Amendment.
The amendment was ratified in 1868 in the aftermath of the Civil War. Section 3 prevented former supporters of the Confederacy from holding political office if they had “engaged in insurrection or rebellion” or given “aid or comfort to the enemies” of the United States.
The Colorado Supreme Court concluded, in a 4-3 decision, that Trump’s role in the Jan. 6, 2021, Capitol incursion amounted to participation in an insurrection.
It is a violation of federal law to engage in a rebellion or insurrection, with a maximum penalty of 10 years in prison. Trump supporters have noted that he has not been charged with, much less convicted of, any such crime.
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On Jan. 4, the former president appealed the Colorado decision to the U.S. Supreme Court, which announced two days later that it would review the case.
During Thursday’s oral arguments, Alito asked Jason Murray, the attorney representing Colorado voters, “Suppose there is a country that proclaims again and again and again that the United States is its biggest enemy, and suppose that the president of the United States, for diplomatic reasons, think it is in the best interest of the United States to provide funds or release funds so that they can be used by that country, could a state determine that person has given aid and comfort to the enemy, and therefore, keep that person off of the ballot?”
Supreme Court Justice Samuel Alito smacks Joe Biden during Donald Trump’s 14th Amendment Case before SCOTUS.
“Suppose there is a country that proclaims again and again and again that the United States is its biggest enemy, and suppose that the president of the United States for… pic.twitter.com/3s4onZ1ewR
— Conservative Brief (@ConservBrief) February 8, 2024
Alito’s hypothetic is a clear reference to Biden’s decision to lift sanctions on Iran, allowing billions of dollars to flow into the radical regime that is responsible for the deaths of American soldiers.
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Iran is the leading state sponsor of terror, funding Hamas, Hezbollah and the Houthis, all of which are wreaking havoc in the Middle East. Iranian proxies have attacked American installations more than 165 times in recent months.
Chief Justice John Roberts echoed Alito’s concerns.
“If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side, and some of those will succeed,” he said. “Some of them will have different standards of proof. Some of them will have different rules about evidence …
“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,’ and others for the Republican candidate, ‘You’re off the ballot.’ It will come down to just a handful of states that are going to decide the presidential election,” Roberts added.
“That’s a pretty daunting consequence,” the chief justice concluded.
SCOTUS Chief Justice John Roberts poses hypothetical to Colorado voters’ attorney about what could happen if the state is allowed to disqualify Trump from the 2024 ballot:
“If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side.” pic.twitter.com/EYoa9nr7nH
— The Recount (@therecount) February 8, 2024
Murray responded that “potential frivolous applications of a constitutional provision” should not prevent the Supreme Court from ruling in Colorado’s favor.
“Now, hold on,” Roberts interjected. “You might think they’re frivolous, but the people who are bringing them may not think they are frivolous. Insurrection is a broad term.”
In December, GOP lawmakers in Pennsylvania, Arizona and Georgia introduced legislation to have Biden removed from their states’ ballots, to highlight just where Colorado’s decision could lead.
They argued Biden engaged in an insurrection by failing to enforce the nation’s immigration laws at the southern border.
Texas Lt. Gov. Dan Patrick also suggested that same month Texas could decide to have Biden removed from their ballot because of the chaos he has allowed at the border.
The justices’ questions — both conservative and liberal — seemed to express skepticism of Colorado’s ability to disqualify the former president.
The state clearly did not think through the implications of its actions, but U.S. Supreme Court justices have.
It’s hard to tell, based on questioning alone, where the justices will ultimately fall, but it would not be shocking to see a 9-0 ruling in favor of Trump being on the ballot.
