Donald Trump’s ballot has reached the United States Supreme Court. The nine justices that make up the country’s highest judicial body have begun this Thursday to assess whether his attempts to remain in power by force constitute a violation of the Fourteenth Amendment, and therefore should be excluded from the electoral process. After the initial arguments, the conservative majority – 6 to 3 –, with three judges who were appointed by Trump himself, seems reluctant to expel him from the elections.
Trump tried to alter the result of the 2020 presidential election and encouraged his followers to go to the Capitol to prevent the certification of Joe Biden on January 6, 2021, in the largest attack on American democracy since the Civil War. The Colorado Supreme Court ruled in December that this was an insurrection and prohibited the magnate from running again in that state. Trump’s defense appealed the sentence and the Supreme Court accepted the case, which began this Thursday with a two and a quarter hour hearing.
The debate has revolved around the text of Section 3 of the 14th Amendment, which prohibits a “congressman or official” who has “sworn an oath to the Constitution” and then “engaged in an insurrection,” from being president of the United States. It was ratified in 1868, after the Civil War, to prevent Confederate leaders from coming to power in Washington 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, if that were the case, the 14th Amendment does not cover the president, because it literally speaks of an “official” (officer). Although the head of state is considered the country’s first official, in the legal text he does not appear explicitly, and in three other provisions that use the same word he is excluded.
Judge Samuel Alito, the most conservative in the court, agreed with him when he said that the constitutional provision does not explicitly prohibit “standing for election,” but rather being “president.” In this way, Trump could participate in the elections and wait for Congress, by a two-thirds majority in both chambers, to lift the ban, something that Mitchell also alleges is in the Constitution. However, that would be highly unlikely given the current configuration of Congress.
The judges have also heard arguments from the lawyer who brought the case against Trump, Jason Murray, who has defended the Colorado Supreme Court ruling by insisting that states have the power to “safeguard their ballots.” Thus, he has assumed that, just as they can disqualify candidates based on age or place of birth under the Constitution, they can also disqualify an insurrectionist under his Fourteenth Amendment. According to Murray, the disqualification would be automatic, and Trump would not be able to circumvent it in Congress, as his defense has alleged.
The Supreme Court’s highest-level rulings usually arrive in June, but this case is expected to arrive more quickly, given that it directly affects the primary process, which began last month with the Iowa caucuses. The state of Colorado , about which the litigation revolves, will hold its primaries on March 5, on the decisive date of Super Tuesday, along with 14 other states.
For now, the Supreme Court seems willing to agree with Trump. Even two of the three progressive justices, Elena Kagan and Ketanji Brown Jackson, seem to lean toward the argument that he should not be excluded from the ballot, given that the provision does not textually include the “president” as an “official” in other constitutional provisions. .
However, 25 of the country’s most distinguished historians, experts on the Reconstruction period after the Civil War, presented the court with a report with historical evidence that the drafters did include the head of state, as the country’s first official. . La Vanguardia interviewed one of them, Allan Lichtman, who states that “this question was directly raised during the debates of its drafting in 1866” and was demonstrated years later, when in 1872 “Congress approved an amnesty law for the majority of the former Confederates and decided not to give it to former President Jefferson Davis precisely because they recognized that he was disqualified from running for president under Section 3.
On the other hand, in her questions to the Colorado lawyer, Judge Kagan has insisted that it could be conflictive to give Colorado the power to decide whether a candidate can run for the White House: “Why should a single state decide who should be President of the United States?” he stated. “It would create an unmanageable situation,” Judge Alito agreed, because, after Colorado, other states would make the same decision, while the most Republican states would keep it on the ballots.
Trump has sent a statement in which he calls on the high court to “immediately end” the case, which “threatens to deprive tens of millions of Americans of the right to vote” and has warned that a decision against him could “unleash the chaos if other state courts follow Colorado’s lead” and exclude it from their votes.
The group of six Colorado voters who initiated the case have responded in another statement that this statement by Trump represents a new “threat of political violence” and have 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 ruling could trigger a new Trump insurrection.
The last time the Supreme Court accepted a case with such a direct impact on the elections was in 2000, when they gave victory to George W. Bush over Al Gore after the failed recount of the votes in Florida. On that occasion, the final decision was reached by a disputed majority of 5 to 4 judges.
Only one of the nine justices present at the opening arguments this Thursday participated in the ruling more than two decades ago: the conservative Clarence Thomas. Some Democratic representatives have demanded that he not participate in the decision, since his wife, Ginni Thomas, openly supported Trump in 2020 and participated in the rally that preceded the assault on the Capitol. Thomas is the high court’s most controversial justice, after it was discovered last year that he received and failed to report expensive gifts from Republican magnate and donor Harlan Crow in the form of luxury trips and real estate purchases.
Outside the court, dozens of people from different parts of the country camped overnight in order to get one of the few places available to the public. Another hundred stood outside the courthouse as opening statements took place in a case that will directly affect the future of their country. Only a dozen were Trump supporters.
Erin Williams, 74, arrived early in the morning from her homeland, Colorado, to defend the ruling of her state’s Supreme Court: “I don’t understand how anyone can question that Trump led an insurrection. He paid for the buses and encouraged people to come and attack our democracy. For me, it was a failed coup d’état. And the Amendment could not be clearer, they made it after the Civil War to prevent, precisely, that a traitor like Trump could arrive to the power”.