US supreme court to decide if Donald Trump can be kept off 2024 presidential ballots

The US supreme court will hear Donald Trump’s appeal of the Colorado ruling that said he should be removed from the state ballot under the 14th amendment to the US constitution, for inciting an insurrection.

The court issued a brief order on the matter on Friday, setting up a dramatic moment in American political history.

The case will be argued on February 8th. As the Republican presidential primary will then be well under way, with Iowa, New Hampshire and Nevada having voted – and as Mr Trump has also been disqualified from the ballot in Maine, a ruling he has appealed in state court – a quick decision is expected.

The Colorado primary is set for March 5th. The state government must begin mailing ballots to overseas voters on January 20th and to all other voters between February 12th and 16th. The ruling suspending Mr Trump is stayed, however, as long as there is an appeal ongoing at the US supreme court.

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In the year of a high-stakes presidential election, the case is set to move rapidly. Carl Tobias, a law professor at the University of Richmond, said that with “oral argument set for February 8th, the appeal will be extremely expedited… Thus, briefs will probably be due as soon as possible, maybe [in] a week or 10 days for each side.”

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The 14th amendment was approved after the Civil War, meant to bar from office supporters of the rebel Confederate states. But it has rarely been used. Cases against Mr Trump were mounted after he was impeached but acquitted by the Senate over the January 6th Capitol attack staged by his supporters, then swiftly came to dominate the Republican presidential primary, maintaining the lie that his defeat in 2020 was the result of electoral fraud.

Fourteenth-amendment challenges to Mr Trump in other states have either failed or remain undecided.

The Colorado supreme court ruled against Mr Trump on December 19th but stayed the ruling until January 4th, pending a Trump appeal. That court-imposed deadline fell shortly before the third anniversary of the deadly January 6th attack on Congress by supporters whom Mr Trump told to “fight like hell” to overturn his defeat by Joe Biden.

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Mr Trump appealed to the supreme court earlier this week, his lawyers arguing that only Congress could arbitrate such disputes and saying the relevant text in the 14th amendment – in section 3 – did not apply to the presidency or vice-presidency as they are not mentioned therein.

ABC News has reported debates from the passage of the amendment, in 1866, in which the presidency was said to be covered by the text.

Prominent legal scholars including Laurence Tribe of Harvard and the retired conservative judge J Michael Luttig have said Trump should be disqualified from seeking the presidency under the 14th amendment.

Mr Luttig, who provided memorable testimony to the House committee which investigated January 6th, called the Colorado ruling “historic . . . a monumental decision of constitutional law . . . masterful and . . . unassailable”.

Other voices, including conservative lawyers and professors and all Mr Trump’s major opponents for the Republican presidential nomination, have questioned whether section 3 applies to the presidency, or to someone who has not been convicted of insurrection. Most have also said the Colorado ruling is anti-democratic, because only voters should decide Mr Trump’s fitness for office.

Despite facing 91 criminal charges under four indictments, 17 concerning election subversion, and civil threats including cases concerning his business affairs and a defamation suit arising from an allegation of rape, Mr Trump leads Republican polling by vast margins.

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On Friday, writing on his blog, Richard Hasen, an election law professor at the University of Los Angeles, California, said the supreme court’s decision to hear the appeal and its expediting of the schedule “was expected, given the national importance of this issue and in particular of removing a major candidate from the ballot on grounds that are novel and mostly untested in modern times”.

Justice Thomas’s continued refusal to recuse himself from this case and others related to the efforts to overthrow the 2020 election... raises questions about the integrity of the judicial process and the influence of political bias

—  Christina Harvey, Stand Up America

But he said he expected a relatively wild case, given a “blob” of a filing from Mr Trump’s lawyers and lawyers for Colorado having “raised three questions, which somewhat overlap with Mr Trump’s claims.

“This seems like it could be a free-for-all in arguments and briefing,” Mr Hasen wrote, adding: “Buckle up; it’s going to be a wild ride from here on out.”

That seems assured. Dominated 6-3 by rightwingers, the supreme court includes three justices installed while Mr Trump was president.

On Thursday, a Trump lawyer, Alina Habba, caused controversy when she said she was sure one of those appointees, Brett Kavanaugh, would “step up” for the man who put him on the court.

Controversy also surrounds Clarence Thomas, the longest-serving justice whose wife, the rightwing activist Ginni Thomas, was involved in Mr Trump’s attempt to overturn the 2020 election.

In a statement on Friday, Christina Harvey, executive director of the pressure group Stand Up America, said Mr Thomas should not hear the Colorado case.

“The American people deserve a fair and impartial review... free from any conflicts of interest,” Ms Harvey said. “Justice Thomas’s continued refusal to recuse himself from this case and others related to the efforts to overthrow the 2020 election – efforts his wife participated in and pressured state officials to support – raises questions about the integrity of the judicial process and the influence of political bias.

“As trust in the supreme court reaches new lows, decisions like these only reinforce Americans’ belief that supreme court justices are politicians in robes. To begin to restore public confidence in our nation’s highest court, Thomas must recuse himself.” – Guardian