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Supreme Court to hear arguments on whether Trump should remain on Colorado ballot

STEVE INSKEEP, HOST:

We face the question of who's entitled to a place in the presidential ballot this year. The Supreme Court hears a case today that affects the state of Colorado, and potentially many more. The justices consider whether, under the Constitution, Colorado was right to disqualify Republican frontrunner Donald Trump for his effort to overturn the 2020 election that he lost. NPR's Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: Norma Anderson watched intruders storm the U.S. Capitol on TV from her home in Colorado.

NORMA ANDERSON: They're trying to overthrow the government, is what I was thinking. And, where is the National Guard?

JOHNSON: Anderson is a Republican, the first woman to lead the Colorado House of Representatives and later the state Senate. Soon, she may occupy another place in the history books - as lead plaintiff in a case seeking to disqualify Donald Trump from the Republican Party ballot in Colorado. Anderson, who's 91 years old, says the case is her way of protecting democracy.

ANDERSON: You have to remember, as old as I am - I was born in the Great Depression. I've lived through that - World War II. I remember Hitler. I remember - my cousin was with Eisenhower when they opened up the concentration camps. I had another cousin start in Africa and go all the way through to Germany. I mean, I understand protecting democracy.

JOHNSON: 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. Jason Murray is their lawyer. He says the 14th Amendment remains relevant.

JASON MURRAY: 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.

JOHNSON: 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 January 6. It's never been used against a presidential candidate. But Murray says there's a reason to revive dormant language in the Constitution now, in this case.

MURRAY: No other American president has refused to peacefully hand over the reins of power after losing an election.

JOHNSON: 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.

SCOTT GESSLER: If the U.S. Supreme Court allows these doors to open, what we're going to see is a constant stream of litigation.

MURRAY: That's Scott Gessler. He served as a Republican secretary of state in Colorado, and he now works as a lawyer for Donald Trump.

GESSLER: You're going to see attacks on President Biden. You're going to see attacks on Kamala Harris - Vice President Harris. You're going to see attacks on senators and representatives and other people trying to prevent them from being on the ballot.

JOHNSON: 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 since he was elected, not appointed. They say Trump did not engage in insurrection on January 6. And they say Congress needs to pass a law that answers questions about how to enforce that part of the Constitution. Again, Scott Gessler.

GESSLER: And we have no guidance from Congress on what the proper standards are, what the proper burden of proof is, what insurrection means.

JOHNSON: 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 as a political question, one for lawmakers and voters to answer, not the courts. Or 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. Rick Hasen is a professor of law and political science at UCLA.

RICK HASEN: So when 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.

JOHNSON: Hasen and two other election law experts wrote the justices to say a decision by the court not to decide could place the nation in great peril.

HASEN: We think that it creates conditions for great political instability if the court leaves this issue open.

JOHNSON: Jason Murray, who's arguing on behalf of the Colorado voters, also sees danger ahead - but from Trump.

MURRAY: 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. 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.

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

(SOUNDBITE OF ARCHIVED RECORDING)

DONALD TRUMP: 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. But you know what? They want to go out of their way to be politically correct.

JOHNSON: The Supreme Court hasn't offered a timetable 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 other states, too. Hasen of UCLA thinks Chief Justice John Roberts will be working hard to avoid a sharp conservative and liberal split.

HASEN: 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, I think, is behind the scenes going to be among the most important things.

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

HASEN: I don't think that's a strong legal argument, but it's a very nice offramp if you're looking for one. It avoids the merits, and it kicks it to another body, and it keeps Trump on the ballot.

JOHNSON: Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Carrie Johnson is a justice correspondent for the Washington Desk.