The lead attorney representing Colorado before the Supreme Court Thursday, arguing to remove Donald Trump from this year’s presidential ballots, admitted under questioning that his rationale could be applied to preemptively invalidate the outcome of an election.
As Breitbart News senior legal contributor Ken Klukowski explained after the oral arguments, CO’s lawyer Jared Murray was ill-prepared for myriad objections to the state’s legal case, even from liberal justices like Ketanji Brown Jackson. One moment highlighted by Klukowski reveals the “danger” of Murray’s reasoning — that even a few days before a national election, a state legislature could bar a candidate deemed an “insurrectionist” from winning the state’s electors in the Electoral College, even if they prevail in the people’s vote.
Read the full transcript of this exchange [emphasis added]:
JUSTICE ALITO: I don’t know how much we can infer from the fact that we haven’t seen anything like this before and therefore conclude that we’re — we’re not going to see something in the future. From the time of the impeachment of President Johnson until the impeachment of President Clinton more than 100 years later, there were no impeachments of presidents. And in fairly short order, over the last couple of decades, we’ve had three. So I don’t know how much you can infer from that.
MR. MURRAY: Certainly, but if this Court affirms, this Court can write an opinion that emphasizes how extraordinary insurrection against the Constitution is and how rare that is because it requires an assault, not just on the application of law, but on constitutionally mandated functions themselves, like we saw on January 6th, a coordinated attempt to — to disrupt a function mandated by the Twelfth Amendment and essential to constitutional transfer of presidential power.
JUSTICE ALITO: Well, let me ask you a question about whether the power that you’ve described as plenary really is plenary. Suppose that the outcome of an election for president comes down to the vote of a single state, how the electors of the vote of a single state are going to vote. And suppose that candidate A gets a majority of the votes in that state, but the legislature really doesn’t like candidate A, thinks candidate A is an insurrectionist, so the legislature then passes a law ordering its electors to vote for the other candidate. Do you think the state has that power?
MR. MURRAY: I think there may be principles that come into play in terms of after the people have voted, that Congress — that the state can’t change the rules midstream. I’m not sure because I’m not aware of this Court addressing it. And, certainly, as the —
JUSTICE ALITO: Well, let’s change it so that it’s not after the election; it’s three days before the election based on the fact that the polls in that state look bad. Can they do it?
MR. MURRAY: I think they probably could under this Court’s decision in Chiafalo [v. Washington], where this Court emphasized that, for much of American history, state legislatures picked their — their own electors and assigned their own electors themselves. But, of course, that would be much more extraordinary than what we have here, which is simple application of normal state ballot access principles to say that we’re only going to put on the ballot an individual who is qualified to assume the office.
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