Donald Trump cannot appear on the state’s primary ballot, the Colorado Supreme Court ruled Tuesday in a legal challenge that has gained national notice as the former president seeks the 2024 Republican nomination.
The Supreme Court, in a 4-3 opinion, found that Trump is barred under a provision of the 14th Amendment that prohibits people who engaged in insurrection from running for office, based on his actions surrounding the Jan. 6, 2021, U.S. Capitol breach and riot by his supporters.
“We conclude that because President Trump is disqualified from holding the office of President under Section Three (of the 14th Amendment), it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot,” the court’s majority opinion says. “Therefore, the Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him.”
Colorado’s case is the first of many legal challenges across the country to result in a ruling disqualifying Trump from the ballot.
It’s a near-certainty the case will head to the U.S. Supreme Court, which has never ruled on that section of the 14th Amendment. The Colorado Supreme Court stayed its ruling until Jan. 4, the day before the deadline for the secretary of state to certify its presidential primary ballots, in case an appeal is filed — in which case the state will be required to include Trump’s name on the March 5 primary ballot unless the federal justices order otherwise.
“This is a major and extraordinary holding from a state supreme court,” Derek T. Muller, a professor who specializes in election law at Notre Dame University, wrote in a blog post Tuesday. “Never in history has a presidential candidate been excluded from the ballot under Section 3 of the Fourteenth Amendment. United States Supreme Court review seems inevitable, and it exerts major pressure on the Court.
“Even inaction would functionally exclude (Trump) from not just Colorado but perhaps other states. And (accepting the case) requires the Court to step into the thorniest of political thickets.”
Steven Cheung, a spokesperson for Trump’s campaign, called the Colorado justices’ decision “completely flawed.” He promised to file an appeal to the U.S. Supreme Court quickly.
“Unsurprisingly, the all-Democrat appointed Colorado Supreme Court has ruled against President Trump,” Cheung said in a statement. He said the ruling supported a “left-wing group’s scheme to interfere in an election on behalf of Crooked Joe Biden by removing President Trump’s name from the ballot and eliminating the rights of Colorado voters to vote for the candidate of their choice.”
In issuing the stay, the court’s opinion says, the justices were “cognizant that we travel in uncharted territory.”
“We do not reach these conclusions lightly,” the opinion says. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
Democratic governors appointed all seven members of the court. The unsigned majority opinion was joined by justices Monica M. Márquez, William W. Hood III, Richard L. Gabriel and Melissa Hart. The dissenters were Chief Justice Brian Boatright and justices Carlos A. Samour Jr. and Maria E. Berkenkotter.
Boatright argued the majority went beyond the court’s authority. He noted that Trump has not been convicted of any insurrection-related crimes.
“Simply put, (Colorado’s election code) was not enacted to decide whether a candidate engaged in insurrection,” he wrote in his dissent. “In my view, this cause of action should have been dismissed.”
Voters and liberal group filed challenge
The legal challenge was brought under the Civil War-era Constitutional amendment. A group of Colorado Republican and unaffiliated voters, working with the liberal watchdog group Citizens for Responsibility and Ethics in Washington, filed suit in early September against Trump and Colorado Secretary of State Jena Griswold, a Democrat and outspoken Trump critic, in state court.
But the legal battle has always been between the plaintiffs and Trump’s legal team.
The plaintiffs took advantage of a Colorado law that allows voters to challenge a candidate’s eligibility. The suit invoked the third section of the 14th Amendment, which was aimed at keeping Confederates out of federal office. It bars people from holding office if they took an oath to support the U.S. Constitution and then engaged in insurrection or rebellion.
“My fellow plaintiffs and I brought this case to continue to protect the right to free and fair elections enshrined in our Constitution and to ensure Colorado Republican primary voters are only voting for eligible candidates. Today’s win does just that,” said Norma Anderson, a former Republican majority leader of both the state House and Senate, in a statement.
Colorado Republican Party Chair Dave Williams, a critic of the lawsuit from the start, said via text message: “Thank God the U.S. Supreme Court will get the final say against the out of control radicals in charge of Colorado who would rather spit on our constitution than let the people decide which candidates should represent them in a free and fair election.”
Doug Spencer, a University of Colorado law professor with a focus on election law, said the court faced the push-pull of different harms to the electoral process.
On one side, he said, the justices could allow a candidate to potentially abuse the election system. On the other side — which the court’s slim majority opted for — they could directly involve themselves in the political process of candidate selection.
Doing so doesn’t really silence Trump, who spoke at a pre-caucus rally in Iowa shortly after the ruling, or even stop the Republican Party from awarding him Colorado’s delegates in some other way, Spencer said.
Spencer predicted the Republican frontrunner would remain on Colorado’s primary ballot regardless, considering the stay the justices included and the likely involvement of the nation’s highest court.
“(This lawsuit) was never really about keeping Trump’s name off Colorado’s ballot, because he was never going to win our electoral votes,” Spencer said, referring to Colorado voters’ decisive rejection of Trump in 2016 and 2020. “It was about using our state law to get a ruling like this — and maybe now other courts will look at this and maybe not be so skittish.”
Second Colorado court to consider case
During oral arguments this month, the state’s justices peppered both sides with questions that took direct aim at the 14th Amendment’s applicability to the presidency and more esoteric legal questions.
The case landed in the court after a Denver District Court judge ruled against the ballot challenge last month, following a five-day civil trial.
Judge Sarah B. Wallace found that Trump did engage in insurrection. But she also ruled that the amendment did not specifically bar insurrectionists from the presidency. The amendment specifies members of Congress, electors of the president and people who hold office under the United States or the individual states, but doesn’t single out the office of the president by name.
The justices in Tuesday’s majority disagreed on the second point, finding that the provision “encompasses the office of the Presidency and someone who has taken an oath as President.”
They also rejected Trump’s claim that he was exercising his right to free speech on Jan. 6, finding: “President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.”
The Denver judge’s ruling had prompted both sides to file appeals to the state’s top court.
The petitioners argued it would “yield absurd results” if the amendment barred insurrectionists from every federal office but the highest one. Attorneys for Trump, meanwhile, argued Wallace made “multiple grave jurisdictional and legal errors,” including by finding Trump engaged in insurrection.
His legal team also questioned if the state court was the proper venue for constitutional litigation and the establishment of “new, unprecedented, and unsupported legal standards.”
Dozens of lawsuits challenging Trump’s eligibility have been filed in other states, with none succeeding so far — except in Colorado. Among other cases with significant backing, the Minnesota Supreme Court ruled in November that Trump could remain on the ballot there because political parties have discretion over their primary ballots.
And a Michigan judge has ruled that Congress should decide if Section 3 applies to Trump. That ruling was appealed Monday.
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