What to look for in Trump’s ballot eligibility case

On Thursday, the United States Supreme Court heard arguments about whether former President Donald Trump should be disqualified from holding federal office. In Colorado, a challenge was filed regarding Trump’s eligibility under section 3 of the Fourteenth Amendment, which reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Colorado Supreme Court, in reviewing a trial court decision, found that Trump’s actions on January 6, 2021, did consist of insurrection as defined by section 3, and that the definitions of the section applied to Trump. Therefore, the Colorado Supreme Court found that Trump was ineligible to hold federal office, and under Colorado law could not be placed on the ballot.

Trump appealed to the Supreme Court, and arguments were heard on Thursday. Here are the main issues that SCOTUS will be reviewing to decide the case:

Is the President an “officer” as defined by the Fourteenth Amendment? The language of the Fourteenth Amendment bars holding “any office … under the United States.” The question of whether the Presidency is an “office” has never been squarely addressed, but is one SCOTUS will have to resolve.

Was January 6 an “insurrection” and did Trump “engage” in it? The Fourteenth Amendment was passed after the Civil War, and the intention at the time was to prevent former Confederate officials from re-taking positions within the government. SCOTUS will be asked to determine if the actions of January 6 constituted an insurrection for purposes of the Fourteenth Amendment, and whether Trump’s actions were sufficiently related to be considered as engaging in the conduct.

Is Section 3 self-executing? There are some constitutional provisions that require an act of Congress before they can be effective, while others do not. SCOTUS will determine whether Section 3 is “self-executing,” meaning that it takes effect without any Congressional action, or not.

Were Trump’s actions protected by the First Amendment? Trump’s speech to the crowd on January 6, just before the attack on the Capitol, is the primary basis for the allegations of his engaging in insurrection. The First Amendment protects speech, particularly political speech, and Trump is arguing that his speech was constitutionally protected.

After oral argument, SCOTUS will consider the case, and likely issue a ruling within the next month or so.