Donald Trump’s ballot has reached the Supreme Court. The nine magistrates that make up the highest judicial instance began this Thursday to assess whether his attempt to be in power by force constitutes a violation of the fourteenth amendment, and therefore he should be excluded from the electoral process. After the initial allegations, the conservative majority – from 6 to 3 -, with three judges appointed by Trump, seems reluctant to expel him from the elections.
Trump sought to alter the outcome of the 2020 election and encouraged his supporters to go to the Capitol to block the confirmation of Joe Biden on January 6, 2021. The Colorado Supreme Court ruled in December that that was an insurrection and banned him from running for elections in that state. Trump’s defense appealed and the Supreme Court accepted the case, which began this Thursday with a two and a quarter hour hearing.
The debate has revolved around Section 3 of the 14th Amendment, which prohibits a “Congressman or officer” who “sworn to the Constitution” and then “participated in an insurrection” from being president of the United States. It was ratified in 1868, after the Civil War, to prevent the leaders of the Confederacy from coming to power after their rebellion against the federal government.
Trump’s lawyer, Jonathan Mitchell, has argued before the judges that on January 6 there was a “protest”, not an insurrection, and that the 14th amendment does not provide for the president, because it literally speaks of a ” official”. Despite the fact that the head of state is considered the first official of the country, it does not appear explicitly in the legal text, and in three other provisions that use the same word, it is excluded.
Judge Samuel Alito, the most conservative in the courtroom, proved him right when he said that the provision does not prohibit “running for election”, but “being president”. In this way, Trump could participate in the elections and hope that Congress, by a two-thirds majority in both houses, will lift the ban, something that Mitchell sees as constitutional.
The judges also heard arguments from the lawyer who presented the case, Jason Murray, who defended the Colorado Supreme Court’s decision by insisting that states have the power to “safeguard their ballots.” In this way, he has assumed that, just as they can disqualify candidates by age or place of birth, they can also disqualify an insurrectionist under the 14th amendment.
The highest-level rulings usually come in June, but the one in this case is expected to come more quickly, since it directly affects the primary process, which began last month with the Iowa caucuses. The state of Colorado, which is the subject of the litigation, will hold its primaries on March 5, on Super Tuesday, with 14 other states.
For now, the Supreme Court seems poised to side with Trump, including two of the three progressive justices, Elena Kagan and Ketanji Brown Jackson. In her questions, Kagan said it could be controversial to give Colorado the power to decide whether a candidate can run for the White House. “It would create an unmanageable situation”, agreed Alito, because, after Colorado, other states would make the same decision, while the Republicans would keep it on the ballot.
Trump sent a statement urging the High Court to “immediately end” the case, which “threatens to disenfranchise tens of millions of Americans” and warned that a decision against him could “trigger chaos if other state courts follow Colorado’s example”.
The group of voters who initiated the case have responded that this statement represents a new “threat of political violence” and has described their defense as “less legal than political”. “We already saw the chaos that Trump unleashed when he was on the ballot and lost”, they recalled, suggesting that a contrary sentence could trigger a new insurrection by Trump.
