Liberal Justice Devastates Colorado’s Attempt to Keep Trump Off Ballot with Case-Killing Question

Justice Elena Kagan asked a decisive question Thursday during oral arguments in the Colorado presidential ballot access case concerning former President Donald Trump.

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, and Section 3 prevented former supporters of the Confederacy, who “engaged in insurrection or rebellion” or gave “aid or comfort to the enemies” of the United States, from holding political office.

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.


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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 oral arguments Thursday, Kagan, a liberal appointed to the court by then-President Barack Obama in 2009, told Jason Murray, the attorney representing Colorado voters, “Most boldly, I think that the question that you have to confront is why a single state should decide who gets to be president of the United States.”

“In other words, you know, this question of whether a former president is disqualified for insurrection to be president again, is to just say it — it sounds awfully national to me,” she continued.

“So whatever means there are to enforce it would suggest that they have to be federal, national means,” Kagan said.

Will the Supreme Court rule in Trump’s favor?

She contended that it would be “extraordinary” that one secretary of state in a swing state such as Wisconsin or Michigan could have the power to decide who the next president would be simply by ruling that he or she is ineligible to be on the ballot.

Murray responded that ultimately it would fall on the U.S. Supreme Court to decide what due process is required by states seeking to take such an action.

Kagan countered by supposing the court ruled that a state had the power to do it.

“Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?” she asked.

Murray cited Article II, Section 1 of the Constitution, which gives states the power to decide how to choose their presidential electors.


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But that really does not go to the question of who is on the presidential ballot in the first place.

Justice Amy Coney Barrett, a Trump appointee, jumped in and asked Murray about the different means each state might use to establish that a candidate is ineligible.

“What if this [decision] is made by the secretary of state without much [due] process at all?” she asked.

“It just doesn’t seem like a state call,” Barrett added.

Murray again suggested it would fall on the U.S. Supreme Court to do its own review of the factual record.

The point Kagan and Barrett seemed to be making was that it should be up to Congress, not individual states, to establish a uniform rule for the nation regarding ballot eligibility under the 14th Amendment.

Section 5 of the amendment, in fact, empowers Congress to do just that.

If Trump had been convicted of the federal crime of insurrection, states could argue that Section 3 of the amendment applies. They would not be establishing their own standards of insurrection.

The justices’ questions, by and large, seemed to express skepticism of Colorado’s ability to disqualify the former president.

It’s hard to tell, based on questioning alone, where the justices will ultimately fall, but it would not be shocking to see a 9-0 ruling in favor of his being on the ballot.

And if there is a 9-0 or 8-1 vote, with Kagan and other liberal justices joining in, it will take the air out of special counsel Jack Smith’s federal election interference case against Trump.

A Note from Our Deputy Managing Editor:


I heard a chilling comment the other day: “We don’t even know if an election will be held in 2024.” 


That wasn’t said by a conspiracy theorist or a doomsday prophet. No, former U.S. national security advisor Lt. Gen. Michael Flynn said that to the founder of The Western Journal, Floyd Brown.


Gen. Flynn’s warning means that the 2024 election is the most important election for every single living American. If we lose this one to the wealthy elites who hate us, hate God, and hate what America stands for, we can only assume that 248 years of American history and the values we hold dear to our hearts may soon vanish.


The end game is here, and as Benjamin Franklin said, “We must all hang together, or assuredly we shall all hang separately.”


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Josh Manning

Deputy Managing Editor

The Western Journal


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Randy DeSoto has written more than 2,000 articles for The Western Journal since he joined the company in 2015. He is a graduate of West Point and Regent University School of Law. He is the author of the book “We Hold These Truths” and screenwriter of the political documentary “I Want Your Money.”


Harrisburg, Pennsylvania




Graduated dean’s list from West Point


United States Military Academy at West Point, Regent University School of Law

Books Written

We Hold These Truths

Professional Memberships

Virginia and Pennsylvania state bars


Phoenix, Arizona

Languages Spoken


Topics of Expertise

Politics, Entertainment, Faith

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