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In December, the Colorado Supreme Court ruled that former President Donald Trump was barred from the state’s presidential primary ballot under Section 3 of the 14th Amendment. The case went before the U.S. Supreme Court Feb. 8, and the justices sounded skeptical about the arguments to remove Trump from the ballot.
Legal observers expect the court to allow Trump to remain on the ballot. The ruling could be issued before Colorado’s March 5 primary.
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In a case with implications for the 2024 presidential election, the U.S. Supreme Court heard historic oral arguments Feb. 8 that former President Donald Trump should be removed from Colorado’s presidential primary ballot.
The Colorado Supreme Court in December ruled that Trump was ineligible to be on the ballot because of his actions on Jan. 6, 2021, when his supporters stormed the U.S. Capitol. The Colorado court cited an obscure provision in the U.S. Constitution’s 14th Amendment that bars people from holding office if they "engaged in insurrection or rebellion."
The high court’s ruling, which is likely to come before Colorado’s March 5 primary, will have ripple effects for other states facing similar legal challenges to Trump’s ballot access.
The last time the Supreme Court played such a pivotal role in the presidential race was in 2000, when the justices ruled 5-4 to end a Florida recount, sealing the election for George W. Bush over Al Gore.
Here, we explain the 14th Amendment, why the Supreme Court is hearing this case, and what the parties’ arguments are for and against removing Trump from the ballot.
On the first day of arguments, justices from across the ideological spectrum sounded skeptical of one state removing Trump from the ballot.
"I think that the question that you have to confront is why a single state should decide who gets to be president of the United States," Justice Elena Kagan, one of the three liberal judges in the nine-seat court, asked Jason Murray, the lawyer arguing in favor of removing Trump. It "seems quite extraordinary, doesn't it?"
Several constitutional law scholars told PolitiFact they sensed that the court would rule that Trump could stay on the ballot, perhaps with two or fewer dissents.
"I think it’s almost certain that Trump wins this," said Kermit Roosevelt, a University of Pennsylvania law professor. He and others added, though, that we won’t know the majority’s precise legal reasoning until the court issues its ruling.
The amendment is best known for giving Black people the right to become United States citizens. But Section 3 of the amendment also says that no person "shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military" who had previously taken an oath to support the Constitution and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." It also says Congress "may by a vote of two-thirds of each House, remove such disability."
When Trump’s supporters stormed the U.S. Capitol, it followed weeks of Trump’s statements seeking to overturn his election loss, including a speech he gave in Washington, D.C., shortly before the attack.
Section 3 was intended to prevent people who served in the Confederacy from again serving in public office unless they were cleared by congressional vote.
In 1872, Congress granted amnesty to most officials covered by Section 3, and in 1898, another statute lifted the remaining prohibitions. Section 3 was rarely invoked in the 20th century.
The Colorado Supreme Court ruled 4-3 to disqualify Trump from the presidential primary ballot under Section 3 of the 14th Amendment. The court concluded that Trump had engaged in an insurrection on Jan. 6, 2021.
The Colorado court stayed its ruling, allowing the secretary of state to include Trump’s name on the ballot.
The case’s plaintiff is a Republican and former Colorado state legislator whom Citizens for Responsibility and Ethics in Washington, a liberal-leaning group, recruited.
Similar cases are pending in a half-dozen states, while many others have been dismissed.
Trump’s lawyer, Jonathan Mitchell, argued that the former president is not an "officer of the United States," which he said refers only to appointed officials and not elected officials. Section 3 refers to people who have taken an oath and are officers of the U.S.
He also argued that for states to remove candidates from the ballot, Congress would have to pass legislation.
Mitchell said Jan. 6, 2021, was not an insurrection, which he said requires "an organized concerted effort to overthrow the government of the United States through violence."
That drew rebuttal from Justice Ketanji Brown Jackson, who said, "Your point is that a chaotic effort to overthrow the government is not an insurrection?"
Mitchell responded that Jan. 6, 2021, was a "riot" and not an insurrection.
"The events were shameful, criminal, violent, all of those things, but did not qualify as insurrection as that term is used in Section 3," he said.
Murray, the lawyer arguing to remove Trump, said that Trump is an officer of the United States.
"There is no possible rationale for such an exemption," Murray said. "Section 3 uses deliberately broad language to cover all positions of federal power requiring an oath to the Constitution."
Murray also said Trump’s arguments ignore the constitutional role of the states in running presidential elections.
"States are allowed to safeguard their ballots," by excluding those who are younger than 35, running for a third term or as in the case of Trump, "those who have engaged in insurrection against the Constitution in violation of their oath."
Many justices appeared skeptical of removing Trump from the ballot, noting implications for democracy.
If the Colorado ruling stands, Chief Justice John Roberts said, many states could remove the Democratic candidate and other states could remove the Republican candidate.
"It will come down to just a handful of states that are going to decide the presidential election," Roberts said. "That's a pretty daunting consequence."
Justice Brett Kavanaugh asked, "What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, letting the people decide that? Because your position has the effect of disenfranchising voters to a significant degree."
Meanwhile, Jackson challenged Murray on his argument that Section 3 applies to presidents.
"Why didn't they put the word president in the very enumerated list in section three? The thing that really is troubling to me is I totally understand your argument, but they were listing people that were barred and ‘president’ is not there. And so, I guess that just makes me worry that maybe they weren't focusing on the president."
One point the justices did not focus on: whether Trump, through his words or actions, bore responsibility for the attack on the U.S. Capitol.
Legal experts said the justices have a few options.
The likeliest would be for a majority to overturn the Colorado decision on the argument that states cannot act individually to disqualify a presidential candidate. One way to do this would be to rule that Congress has the sole authority to implement Section 3 of the 14th Amendment by passing a law, something it hasn’t done since the amendment was ratified.
Another option would be to overturn Colorado’s decision based on a different argument — such as that Trump didn’t take part in an "insurrection," the word used in the 14th Amendment, or that the president wasn’t envisioned by the drafters as being subject to the amendment.
But Mark Graber, University of Maryland law professor, and other legal experts said that option is unlikely because the justices likely would prefer to avoid detailed efforts to frame implementation of the 14th Amendment, because that would set a far-reaching precedent.
The other options would be allowing Colorado’s disqualification to stand, or declaring Trump disqualified everywhere. But that seems unlikely based on justices’ comments in court.
Graber said he "would not be surprised" to see a decision within two weeks, and others agreed.
RELATED: All of our fact-checks about Jan. 6
CSPAN, "Supreme Ct. Hears Case on Fmr. Pres. Trump's Colorado Ballot Eligibility," Feb. 8, 2024
PolitiFact, Could the 14th Amendment be used to keep Donald Trump off the 2024 ballot? Sept. 6, 2023
Email interview with Kermit Roosevelt, University of Pennsylvania law professor, Feb. 8. 2024
Email interview with Mark Graber, University of Maryland law professor, Feb. 8. 2024
Email interview with Michael Gerhardt, University of North Carolina law professor, Feb. 8. 2024