By Catherine Yang
Sen. Ted Cruz (R-Texas) and House Majority Leader Steve Scalise (R-La.) were joined by 177 other members of Congress, including high-ranking Republicans such as Senate Minority Leader Mitch McConnell (R-Ky.), in urging the U.S. Supreme Court to keep former President Donald Trump on the ballot in the 2024 election.
“As elected officials, amici have a strong interest in ensuring that the rules for eligibility for federal office are clear, objective, and neutral, rather than malleable and conveniently applied to ensnare political opponents,” their brief reads.
Since the Supreme Court agreed on Jan. 5 to hear President Trump’s appeal of the Colorado Supreme Court’s decision to disqualify him as a candidate, some 40 amici briefs have been submitted. Legal groups, bar associations, experts, and concerned voters—individually and in groups—have urged the high court on a daily basis to put an end to the legal confusion and political “chaos” resulting from the Colorado decision.
The lawmakers argue that the Colorado court improperly interpreted Section 3 of the 14th Amendment, a Civil War-era statute meant to bar some people who had “engaged in insurrection” from holding public office.
“Enforcing Section 3 requires implementing legislation from Congress, thereby protecting candidates from abuse by state officials,” the brief reads.
They also argue that because Congress has the ability to remove a Section 3 disability with a two-thirds vote any time up to the moment the candidate holds office, a state court has no right to circumvent this process. The lawmakers are requesting that the Supreme Court reverse the Colorado decision to disqualify President Trump from the ballot.
“The Colorado Supreme Court’s opinion tramples the prerogatives of members of Congress,” the brief reads.
It says that no insurrection occurred, pointing to violent protests in Portland, Oregon, in 2020 that were cheered by Democrat politicians.
“Such conduct by politicians was distasteful but scarcely would have been thought to qualify as insurrection—until the Colorado Supreme Court got involved, that is,” the brief reads.
But even putting aside this “broad” interpretation of “insurrection” and what would qualify as engaging in one, they argue that President Trump did no such thing.
“It is hard to imagine an actual insurrectionist quickly asking for peace and encouraging disbandment,” the brief reads, referencing President Trump’s statements that day imploring demonstrators to act “peacefully and patriotically.”
Chaos After Colorado Ruling
More than 60 challenges to President Trump’s eligibility as a candidate have been filed across the nation in the past several months, arguing that under Section 3 of the 14th Amendment, he should be struck from state primary ballots.
These arguments stem from viewing Jan. 6, 2021, as an “insurrection,” an allegation that has only been argued and ruled on in a Colorado district court hearing an administrative election law challenge.
The novel legal theory has been advanced by activist groups since Jan. 7, 2021, but it was only after the Colorado district court ruling that Jan. 6 constituted an “insurrection,” and that President Trump played a role, that the movement picked up steam.
Notably, the district court didn’t remove President Trump from the ballot, but instead ordered the secretary of state to include him on the ballot because it found that Section 3 didn’t apply to presidents.
However, the order was overturned by the Colorado Supreme Court, in a 4–3 decision with each dissenting justice issuing an opinion.
Last month, Colorado became the first state to officially disqualify President Trump, even though the order left little chance for the actual removal of his name from the ballot. The court had stipulated that the secretary should only remove President Trump from the ballot if he did not appeal the decision to the Supreme Court, or if the Supreme Court otherwise ordered such a removal.
But although President Trump wasn’t removed from the Colorado ballot, news of a possible disqualification prompted lawmakers and officials in other states to call for his removal as a candidate—and officials in some states have called for the removal of President Joe Biden as a candidate as retaliation for what they call judicial overreach.
Nine days later, Maine Secretary of State Shanna Bellows also disqualified President Trump as a candidate. Similar to the Colorado ruling, the Maine decision stipulated that should President Trump appeal in court, the decision would be stayed and he would remain on the ballot. He was never removed.
And although most other state and federal courts and state election officials have been dismissing petitions to remove President Trump, the reasons given in the various decisions and opinions vary from jurisdiction to jurisdiction, raising more legal questions than they answer.
Chief among them are whether states have the authority to decide on Section 3 disqualification at all and the roles of courts and Congress in the matter. Judges have noted that several issues of process require resolution before the question of “insurrection” can even be addressed.
The result has been multiple similar challenges being filed in the same state, even after dismissals of related challenges. Many amici brief authors have urged the Supreme Court to settle the issue for all states, not just Colorado. In anticipation of such a resolution, several state courts have recently dismissed or stayed these challenges by citing the Supreme Court case.