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Supreme Court says it will decide if Trump qualifies for Colorado ballot

Members of the Supreme Court: bottom row, from left, Associate Justices Sonia Sotomayor and Clarence Thomas; Chief Justice of the United States John Roberts; Associate Justices Samuel Alito and Elena Kagan. Top row, from left, Associate Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson.  (Jabin Botsford/The Washington Post)
By Ann E. Marimow Washington Post

The Supreme Court said Friday it will decide whether former President Donald Trump’s name can appear on primary-election ballots, a case that ensures the justices will play a central role in shaping this year’s presidential election.

The decision to review the case from Colorado at oral argument in early February comes after that state’s top court disqualified the Republican front-runner, finding Trump engaged in an insurrection before and during the Jan. 6, 2021, attack on the U.S. Capitol.

Friday’s announcement puts the justices in a pivotal, potentially uncomfortable position with echoes of the court’s involvement in the 2000 election when its decision assured victory for President George W. Bush, polarized the nation and damaged the court’s reputation as an independent institution.

The court’s brief order scheduled oral argument for Feb. 8, and came the day before the third anniversary of the Capitol riot.

Legal scholars and state election officials have urged the court to quickly settle the question of Trump’s eligibility as a candidate and to ensure all states follow the same policy ahead of this year’s primary voting. Trump holds a wide lead over other Republican contenders, with the Iowa caucus less than two weeks away and state primaries starting Jan. 23.

The Colorado decision was the first time a court found a presidential candidate could be barred from the ballot because of a provision of the post-Civil War 14th Amendment. The provision prevents insurrectionists from holding office and was designed to keep Confederates from returning to power.

Similar arguments have been made to keep Trump off the ballot elsewhere. While those challenges have failed in some states, like Michigan and Minnesota, they are pending in Illinois, Oregon, Massachusetts and elsewhere. Maine’s top election official last month barred Trump from that state’s ballot, an order Trump has appealed in state court.

Both Colorado and Maine temporarily put their decisions to bar Trump as a candidate on hold, meaning the former president’s name will stay on the primary ballots until the legal issues are resolved. Colorado and Maine hold primaries on March 5, but ballots are printed – and mailed to military and overseas voters – weeks before then.

The public already views the Supreme Court through a partisan lens, with Democrats expressing little confidence in the court and Republicans saying the opposite, and the question of whether Trump should be kept off the ballot has the potential to further polarize those views.

“It throws them right into the political thicket,” Stanford law professor Michael W. McConnell said of the court. “There is no way they can decide the case without having about half the country think they are being partisan hacks.”

In part for that reason, Chief Justice John G. Roberts Jr., an ardent institutionalist, is likely to look for consensus through a narrow ruling that seeks unanimity or avoids a partisan split on a court with a 6-3 conservative majority that includes three justices nominated by Trump.

Constitutional scholars are divided on whether it would be good for democracy to bar Trump from the ballot, or whether such a move, even if legally sound, is politically too dangerous. Many of them say they expect the justices to try to find a way to decide the case without addressing the underlying question of whether Trump engaged in insurrection.

The justices have several paths to resolve the case in a way that keeps Trump’s name on the ballot without dealing with the question of insurrection.

In urging the justices to invalidate the Colorado decision, and give voters the opportunity to select the candidate of their choosing, the former president’s lawyers and the Colorado Republican Party have made multiple arguments. States, they say, have no authority to enforce Section 3 of the 14th Amendment without the passage of federal legislation. They also contend that Section 3 applies to those who took oaths to serve in Congress or a state legislature, but not to serve as president. In addition, Trump’s lawyers say he did not engage in an insurrection.

If a majority of justices agree with Trump on any one of those arguments, the court could allow the former president’s name to remain on the ballot.

Attorneys for the six Colorado voters who challenged Trump’s eligibility have said the Constitution’s language barring insurrectionists from office is clear; that it applies to presidents; and does not require an act of Congress to be enforced. They urged the justices in a filing Thursday to abide by the finding from Colorado’s top court that the former president intentionally incited his supporters to violence on Jan. 6, 2021, to disrupt the certification of the election – and exacerbated the attack while it was ongoing.

Of the nine sitting justices, only Justice Clarence Thomas was on the bench when the court issued its 2000 decision about the vote count in Florida in Bush v. Gore. But his colleagues are certainly mindful of the lasting impact the ruling had on the court’s image.

Years after she retired, the late Justice Sandra Day O’Connor, for one, expressed misgivings that the court had gotten involved in the case, acknowledging the ruling “gave the court a less than perfect reputation.”

“No doubt they have learned some lessons from that,” said McConnell, a former federal appeals court judge. “They do not want to be in a position where they look like they’ve decided an American election.”

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Patrick Marley contributed to this report.