Supreme Court Justice Clarence Thomas clashed on Thursday with a lawyer who argued in favor of Colorado removing former President Donald Trump from the primary ballot under Section 3 of the 14th Amendment, an insurrection clause dating back to the Civil War.
Jason Murray, the attorney who appeared on behalf of Colorado voters challenging Trump’s eligibility over his actions leading up to the U.S. Capitol breach on January 6, 2021, struggled to come up with instances of national candidates being disqualified by states when pressed by the justice.
Thomas asked Murray if he had any “contemporaneous examples,” which the justice qualified as being “shortly after the adoption of the 14th Amendment, where the states disqualified national candidates — not its own candidates.”
“I understand the states controlling state elections and state positions. What we are talking about here is national candidates,” Justice Clarence Thomas said regarding respondents’ inability to provide examples of states kicking national candidates off the ballot. pic.twitter.com/wxkiYOI8mt
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Murray referred to one instance, pertaining to an 1868 congressional election in Georgia, and said he thought it was “not surprising that there are few examples” because at that time, “candidates were either write-in or they were party ballots, so the states didn’t run the ballots in the same way and there wouldn’t have been a process for determining before an election whether a candidate was qualified unlike the processes that we have now.”
Thomas countered by saying that during the Reconstruction era, there would still be a “plethora of Confederates still around” who might run for state or national offices, suggesting there would be “a few examples of national candidates being disqualified, if your reading is correct.”
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Murray contended that “certainly” there were national candidates “disqualified by Congress refusing to seat them,” to which Thomas shot back by reminding the lawyer that they were talking about states disqualifying national candidates.
“Other than the example I gave, no, but again, your honor, that’s not surprising because there wouldn’t have been — states certainly wouldn’t have the authority to remove a sitting federal officer,” Murray said.
As the exchange continued, Thomas explored the purpose of Section 3, saying the clause sought to address the concern that “former Confederate states would continue being bad actors and the effort was to prevent them from doing this.”
Thomas posited that the thinking behind Section 3 was not “authorizing the South to disqualify national candidates,” and yet he surmised that the idea underlies the argument being made by Murray to keep Trump off the ballot. He again pressed Murray for examples.
Murray said historians filed briefs in support of his case making the point that “the idea of the 14th Amendment was that both states and the federal government would ensure rights and that if states failed to do so, the federal government certainly would also step in.”
The lawyer went on to repeat that the reason why there are not more examples was because “elections worked differently” in the 19th century. “States have a background power under Article II in the 10th Amendment to run presidential elections,” Murray said, adding that they did not “use that power to police ballot access until about the 1890s” when “everyone had received amnesty and these issues had become moot.”
