Ahead of cert decision, Rokita leads amici brief urging SCOTUS to take Trump Colorado ballot case

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The U.S. Supreme Court in Washington, D.C. (IL file photo)

Indiana Attorney General Todd Rokita has joined the national conversation surrounding former President Donald Trump’s eligibility to appear on the 2024 ballot, filing an amicus brief urging the U.S. Supreme Court to review the issue after the Colorado Supreme Court found Trump engaged in “insurrection.”

Before the high court on Friday granted cert to the case — Donald J. Trump v. Norma Anderson, et al., 230719 — Rokita, alongside West Virginia Attorney General Patrick Morrisey, led a 27-state amici brief urging the justices to answer the question of whether Trump can be kept off 2024 ballots.

Indiana Attorney General Todd Rokita

“American voters choose the President, not a partisan court in Colorado,” Rokita said in a Friday news release announcing the brief, before the justices publicly agreed to take the case. “This is an obvious attempt to confuse and disenfranchise millions of voters wanting to cast their ballots for former President Donald Trump.”

The issue is before the justices after the Colorado Supreme Court ruled in December that then-President Trump engaged in “insurrection” on Jan. 6, 2021, making him ineligible to run for office under Section 3 of the 14th Amendment. That provision was initially designed to keep Confederates from returning to government positions after the Civil War.

Section 3 provides, “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 case will be the first time the justices interpret Section 3.

In urging the justices to do so, Rokita and the other attorneys general wrote, “Our country needs an authoritative, consistent, and uniform answer to whether former President Trump is constitutionally eligible for President. Granting the Petition would at least be a step in that direction.”

“The Colorado court’s decision to dilute former President Trump’s votes in the upcoming election cannot stand for several reasons,” the amici brief says, listing three such reasons.

First, “It threatens to throw the 2024 presidential election into chaos. Yet courts are supposed to give ‘a due regard for the public interest in orderly elections.’ Benisek v. Lamone, 138 S. Ct. 1942, 1944 (2018).”

“Most obviously, it (the Colorado ruling) casts confusion into an election cycle that is just weeks away,” the amici wrote. “Beyond that, it upsets the roles of the Congress, the States, and the courts.”

Relatedly, the second reason the amici gave for granting cert is that “(t)he Fourteenth Amendment — perhaps because of the very sorts of problems described above — anticipates that Congress will decide whether a particular person is qualified to hold office under Section 3 (or at least determine the process for making that decision). The structure of the Constitution, relevant history, and authority from this Court confirm as much.”

Finally, the amici are arguing that the Colorado court “fashioned a definition of ‘insurrection’ that is standardless and vague.”

“The best available evidence suggests that insurrection equates with rebellion — a more demanding standard than the Colorado Court settled on,” the brief says. “But what constitutes insurrection is not a question courts should answer at all.”

According to the amici, “The Colorado Supreme Court has cast itself into a ‘political thicket’ … and it is now up to this Court to pull it out.”

In addition to Indiana and West Virginia, the attorneys general of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming signed the brief.

Also, the Arizona Senate president and House speaker joined the brief, though the state’s attorney general did not.

Colorado’s court was the first to ban Trump from the ballot, though similar cases were heard — and rejected — in other states including Michigan and Minnesota.

Also, in Maine, the Democratic secretary of state removed Trump from the state’s presidential primary ballot in December, a decision also based on the “insurrection clause.” Trump is also appealing that decision.

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