(NewsNation) — Despite being the frontrunner for the 2024 Republican presidential nomination, the U.S. Supreme Court will weigh in on whether former President Donald Trump can be stricken from the Colorado ballot over his alleged role in the Jan. 6, 2021, U.S. Capitol riots.
Oral arguments begin on Thursday in a case focused on a Civil War-era provision in the U.S. Constitution’s 14th Amendment.
A Supreme Court ruling could have widespread ramifications – not only for Trump’s re-election chances but how states define language that, in some cases, could keep him off the ballot later this year.
Thursday’s oral arguments before the Supreme Court will zero in on the rarely referenced Section 3 of the 14th Amendment, sometimes referred to as the “insurrection clause,” which could have “huge stakes” for Trump if the court rules against him.
“Were (the court) to tell states they have the right to throw off the ballot someone who got 74 million votes in 2020 and who is leading the incumbent president in national polls, that would be landmark,” NewsNation political contributor George F. Will said.
“That would light a fuse, that would blow things up in this country in a way that we have not seen since the 1850s,” Will also said.
What does the ‘insurrection clause’ say?
Section 3 of the 14th Amendment sets out to disqualify anyone from holding office — including President and Vice President — if they “engaged in insurrection or rebellion” or “given aid or comfort to the enemies thereof.”
Congress can override Section 3 with a two-thirds majority vote.
The Amendment was drafted after the Civil War, and in addition to Section 3, it was the measure that gave previously enslaved people citizenship in the United States.
How does a Civil War-era Amendment apply today?
The provision first resurfaced after the Jan. 6, 2021 Capitol riots. Challenges were raised against several lawmakers, namely U.S. Rep. Marjorie Taylor Greene, R-Ga., and New Mexico County Commissioner Couy Griffin.
The challenge against Greene was unsuccessful and the Supreme Court is set to hear a challenge of a state court ruling against Griffin later this month.
However, Trump’s case rises to a different level considering his pursuit of the White House. The Colorado Supreme Court ruled Section 3 could be applied to keep Trump off the primary ballot because of his alleged role in the Jan. 6 riots.
Trump’s campaign has appealed the Colorado court’s ruling to the high court, which leans conservative 6-3 including three Trump-appointed justices.
However, Will argued the justices’ political leanings will have “zero” to do with how they rule.
What is Trump’s argument?
Trump’s legal team has pushed the court to put a “swift and decisive end” to ballot challenges. In court filings, Trump’s attorneys “chaos and bedlam” will ensue if his name is removed from state ballots, which, his attorneys wrote “would disenfranchise millions of Americans.”
In a filing to the Supreme Court on Monday, Trump’s legal team called the Colorado ruling “anti-Democratic,” while referring to himself as the “leading candidate for President of the United States.”
Trump’s team claims that Section 3 is not enforceable except by an act of Congress and only prohibits those found to have violated the amendment from holding office, not appearing on a ballot. Additionally, they argue Trump did not incite an insurrection on Jan. 6.
Legal experts including conservative attorney and Trump critic George Conway called the filing “bizarre” on X (formerly Twitter) and “a sign of weakness.” University of Texas law professor Lee Kovarsky characterized Trump’s attorneys’ filing Monday as a “massive tactical blunder.”
Could this keep Trump off the general election ballot?
Many pundits expect the Supreme Court to push the matter to Congress to avoid making what could be seen as a ruling with political ramifications.
That could delay the ballot battle indefinitely, defusing the matter because, Will argues, “Congress will never do anything.”
Some legal experts have pondered how the nation would respond should Trump be kicked off the ballot.
Rachel Kleinfeld told Politico that concerns that such a court ruling against Trump could “catapult” the nation back to Jan. 6-level violence. But Kleinfeld, a senior fellow at The Carnegie Endowment for International Peace, feels that notion is misplaced.
Andrew Tang, a law professor at the University of California-Davis, told Politico he believes a Supreme Court decision ruling against Trump would “come with great risk and great reward” for both the nation and the high court itself.
Depending on how the court rules, the Supreme Court could increase its perceived public legitimacy, Tang wrote in Politico.
But that legitimacy could have longer-range implications for Democrats and moderates and may allow the court to feel “emboldened” to continue to move the law toward the right in laws having to do with guns, abortion, voting rights and other power-key issues, Tang wrote.
What happens next in Trump-Colorado case?
The court has already indicated it plans to act swiftly, which would dramatically shorten the time between when written briefs are received and when actual arguments could be held in court, the Associated Press reported.
Will believes much of how the case will proceed will depend on how the court handles the term “insurrection,” something the court could pass off to Congress.
Georgetown University law professor Caroline Fredrickson said on NewsNation’s “Morning in America” that while the court could rule on the language found in Section 3, justices could also defer to individual states to determine if Trump should remain on their primary ballots.
She said that the fact Trump hasn’t been accused of a crime or charged in the Jan, 6 riots should matter. But because of the January 6 Committee’s findings on Trump’s involvement in ordering his supporters to “fight like hell” and “take the country back”, that could have an impact, Fredrickson said.
“This is about a civil issue and a democracy issue about who should be able to run for the highest office in the land,” Fredrickson said. “It doesn’t require a criminal conviction. It doesn’t even require a criminal complaint. But it does require a finding that somebody had participated in insurrection or aided in comforting (it) and we have that.”
Other legal implications tied to Trump case
While the Supreme Court case has direct ties to Colorado, Maine and other states are challenging Trump’s ballot presence.
Similar challenges have already been defeated in places like Minnesota, Michigan and Illinois, but a ruling in Trump’s favor would clear the path for the former president to appear on statewide ballots nationwide.
In addition to the Supreme Court case, Trump faces 91 felony charges in four criminal cases, including two in which the former president is accused of attempting to overturn the results of the 2020 election.
A federal appeals court ruled Trump is not immune from facing conviction Tuesday, rejecting his claims that he is.
