Supreme Court Justice Clarence Thomas recently questioned the legal grounds on which the state of Colorado disqualified former President Donald Trump from its ballot. Thomas pressed attorney Jason Murray, the lawyer representing Colorado before the Supreme Court, for the state’s decision, which cited Section Three of the Fourteenth Amendment, known as the “Insurrection Clause.”
During a Q&A session with Murray, Thomas displayed his skepticism and disputed the basis of Colorado’s argument that states can remove presidential candidates from their ballot. However, when Thomas asked the attorney to provide examples of historical precedent, Murray could not.
Thomas decisively rebuked Murray’s argument, citing the post-Civil War period in the U.S., where former members of the confederacy would have been disqualified from holding office. “But would seem that — particularly after Reconstruction and after the Compromise of 1877 and during the period of Redeemers — that you would have that kind of conflict. There were a plethora of Confederates still around. There were any number of people who would continue to either run for state offices or national offices,” Thomas said, explaining that this point in history would “suggest that there would at least be a few examples of national candidates being disqualified.”
Murray responded, “Well, there were certainly national candidates who are disqualified by Congress refusing to seat them.” Thomas also disagreed with this assertion, stating that it is “not this case.” Murray admitted, “Other than the example I gave, no.”
“What was the purpose of Section Three? States were sending people — the concern was that the former Confederate states would continue being bad actors,” Thomas continued. “And the effort was to prevent them from doing this and you’re saying that well, this also authorized states to disqualify candidates. So what I’m asking you for, if you are right, what are the examples?”
“Your Honor, the examples are states excluded many candidates for state office, individuals holding state offices. We have a number of published cases of states,” Murray responded to Thomas’ inquiry. However, Thomas critiqued this argument explaining that it concerns elections and positions at the state level, not national presidential elections.
“I understand the states controlling state elections and state positions. What we are talking about here are national candidates,” Thomas said, pointing out that there were many people who “felt very strongly about retaliating against the South, the Radical Republicans, but they did not think about authorizing the South to disqualify national candidates, and that’s the argument you’re making.”
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Thomas further pushed Murray to provide real historical examples that would substantiate his argument. Yet again, the attorney could not give any examples, arguing that elections were not run the same way in the 19th century.
“I think the reason why there aren’t examples of states doing this is an idiosyncratic one of the fact that elections work differently back then, states have a background power under Article II and the Tenth Amendment to run presidential elections. They didn’t use that power to police ballot access until about the 1890s. And by the 1890s, everyone had received amnesty and these issues have become moot,” Murray said.
Featured image credit: Sonny Perdue is sworn in as the 31st Secretary of Agriculture by U.S. Supreme Court Justice Clarence Thomas with his wife Mary and family April 25, 2017, at the Supreme Court in Washington, D.C.. Photo by Preston Keres