Alito Notes How Red States Could Kick Biden Off Their Ballots Too, If Colorado Ruling Allowed to Stand

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Supreme Court Justice Samuel Alito showed just how easily red states could kick President Joe Biden off their states’ ballots if Colorado’s decision to deny former President Donald Trump ballot access is upheld.

In December, the Colorado Supreme Court ruled that Trump, the GOP front-runner in this year’s presidential race, was ineligible to be on the ballot in the state, concluding he participated in an “insurrection” and therefore is disqualified from holding federal office under Section 3 of the Constitution’s 14th Amendment.

The amendment was ratified in 1868 in the aftermath of the Civil War. Section 3 prevented former supporters of the Confederacy from holding political office if they had “engaged in insurrection or rebellion” or given “aid or comfort to the enemies” of the United States.

The Colorado Supreme Court concluded, in a 4-3 decision, that Trump’s role in the Jan. 6, 2021, Capitol incursion amounted to participation in an insurrection.

It is a violation of federal law to engage in a rebellion or insurrection, with a maximum penalty of 10 years in prison. Trump supporters have noted that he has not been charged with, much less convicted of, any such crime.

On Jan. 4, the former president appealed the Colorado decision to the U.S. Supreme Court, which announced two days later that it would review the case.

During Thursday’s oral arguments, Alito asked Jason Murray, the attorney representing Colorado voters, “Suppose there is a country that proclaims again and again and again that the United States is its biggest enemy, and suppose that the president of the United States, for diplomatic reasons, think it is in the best interest of the United States to provide funds or release funds so that they can be used by that country, could a state determine that person has given aid and comfort to the enemy, and therefore, keep that person off of the ballot?”

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