Supreme Court on Thursday to consider whether Trump can be removed from primary ballot

The case was brought by Norma Anderson, who watched intruders storm the U.S. Capitol three years ago on television, from her home in Colorado.

“They’re trying to overthrow the government is what I was thinking,” Anderson recalled.

Anderson, 91, is a Republican. She was the first woman to lead the Colorado House of Representatives, and later, the state Senate. She said taking part in the lawsuit is her way of protecting democracy.

“You have to remember, as old as I am, I was born in the Great Depression,” she said. “I lived through World War II. I remember Hitler. I remember my cousin was with Eisenhower when they opened up the concentration camps….I mean, I understand protecting democracy.”

Anderson and five other Colorado voters are relying on part of the 14th Amendment, passed after the Civil War, to keep Confederates out of office.

“Those who drafted section 3 of the 14th Amendment back in the 1860s were very clear that they understood this provision not just to cover former Confederates but that it would stand as a shield to protect our Constitution for all time going forward and so this is not some dusty relic,” said Jason Murray, their lawyer.

Does the 14th Amendment apply to Trump?

This provision has been used to disqualify candidates only eight times since the 1860s, most recently, two years ago, in the case of a county commissioner from New Mexico who trespassed at the Capitol on Jan. 6, 2021. It’s never been used against a presidential candidate.

“In an ideal world, it would have been great to have years to build cases in different states and different parts of the country regarding defendants at different levels,” said Noah Bookbinder, the president of Citizens for Responsibility and Ethics in Washington, which is backing the lawsuit. “We didn’t have that luxury because this person who played such a central role in making that insurrection happen, Donald Trump, was suddenly trying to put himself in a position of power again.”

Murray said there’s a reason to revive dormant language in the Constitution now, in this case: “No other American president has refused to peacefully hand over the reins of power after losing an election,” he said.

The language in the so-called Insurrection Clause is simple: anyone who engages in insurrection after taking an oath to support the Constitution is barred from holding public office, unless two-thirds of Congress votes to grant that person amnesty.

Extending that logic to a former president would have profound consequences, said Scott Gessler, a former Republican Secretary of State in Colorado who now works as a lawyer for Trump.

“If the U.S. Supreme Court allows these doors to open, what we’re going to see is a constant stream of litigation,” Gessler said. “You’re going to see attacks on President Biden. You’re going to see attacks on … Vice President Harris. You’re going to see attacks on senators, representatives, other people trying to prevent them from being on the ballot. “

In court papers, Trump’s legal team has been arguing that part of the 14th Amendment doesn’t apply to the president because he was not an officer of the United States as that term is used in the Constitution.

They said Trump did not engage in insurrection on Jan. 6. Indeed, while Trump is fighting 91 criminal charges across four different jurisdictions, including for actions related to his efforts to cling to power, he hasn’t been charged with violating the statute against insurrection or rebellion. And the U.S. Senate did not convict Trump in an impeachment process just weeks after the Capitol riot.

Lawyers for the former president said Congress needs to pass a law that answers questions about how to enforce that part of the 14th Amendment.

“We have no guidance from Congress on what the proper standards are, what the proper burden of proof is, what insurrection means,” Gessler added.

The court’s options

The case puts the Supreme Court in the middle of the presidential election for the first time since it stopped the Florida recount and handed the White House to George W. Bush in 2000.

This time, the justices have a few options: They could decide to disqualify Trump, just like the highest court in Colorado did, last December; they could decide this is a political question, one for lawmakers and voters to answer, not the courts; o, they could keep Trump on the ballot, as he and dozens of Republicans in Congress are asking.

Not providing a clear answer before the November election or the certification in January could confuse or disenfranchise voters.

“[W]hen you have such divided opinion and you have such a volatile situation, it’s just better to have some certainty about this issue as soon as possible,” said Rick Hasen, a professor of law and political science at UCLA.

Hasen and two other election law experts wrote a friend-of-the-court brief to say a decision by the court not to decide could “place the nation in great peril.”

“We think it creates conditions for great political instability if the court leaves this issue open,” Hasen said.

Jason Murray, who’s arguing on behalf of the Colorado voters, also said he sees danger ahead — but danger from Trump.

“If you read Trump’s brief, he has a not so subtle threat to the court and to the country that if he loses this case, there’s going to be bedlam all over the country,” Murray said. “And I take that as Trump once again trying to hold this country hostage. And I don’t think the country should stand for it.”

On the campaign trail in New Hampshire last month, Trump pointed out he named three of the six conservative justices on the U.S. Supreme Court. Then, he mused about what they might do and why.

“Republicans, they want to show that they can’t be bought, that the fact that you put them there, and made their lives, took them from someplace where they were doing quite well,” Trump said. “But you know what? They want to go out of their way to be politically correct.”

When the court could rule

Donald K. Sherman, the chief counsel at CREW, said the Supreme Court, including justices appointed by Trump, have voted against his interests in the past, including a case where the court allowed the House Select Committee investigating the Jan. 6 siege to access documents related to Trump’s conduct.

“We are fully prepared to accept the results of the court’s decision and we expect that state officials across the country are fully prepared to do that,” Sherman said. “The one big question that always remains is, is Donald Trump going to follow the rule of law or is he going to do something different that endangers our democracy?”

The Supreme Court hasn’t offered a time table for its decision, but some legal experts think the justices could rule before the Super Tuesday primaries, in early March.

The question about Trump’s disqualification in Colorado is playing out in different ways in dozens of other states too. Maine’s secretary of state found that Trump is disqualified from appearing on Maine’s primary ballot, but the decision is stayed pending Trump’s appeal. Litigation is also pending in 11 other states.

Where challenges to Trump’s appearance on primary ballots have already been dismissed, new challenges could be brought to his eligibility for the general election.

Hasen, of UCLA, said he thinks Chief Justice John Roberts will be working hard to avoid a sharp conservative and liberal split.

“Unanimity, of course, would be best, but finding some way of reaching something where you bring in not just the Republican appointed justices but at least some of the Democratic appointed justices is behind the scenes going to be one of the most important things,” Hasen said.

One way might be to find that the key part of the 14th Amendment requires Congress to pass a new law before it can be used.

“I don’t think that’s a strong legal argument but it’s a very nice off-ramp if you’re looking for one,” Hasen said. “It avoids the merits and it kicks it to another body and it keeps Trump on the ballot.”

NPR Legal Intern Elissa Harwood contributed to this story