The Colorado Supreme Court ruled late Tuesday that former President Donald Trump is ineligible for election in the first-ever invocation of the U.S. Constitution’s insurrection clause for the presidency.
Trump was removed from the state’s presidential primary ballot in a 4-3 vote in which justices partially overturned a previous district court’s ruling on the matter. One of the issues under question was whether Section 3 of the 14th Amendment, which has an “insurrectionist ban,” disqualified Trump from being on the presidential primary ballot.
“We do not reach these conclusions lightly,” the state supreme court, whose justices were all appointed by Democratic governors, said in their filing. “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.”
Trump's attorneys vowed to appeal the decision to the U.S. Supreme Court.
“The Colorado Supreme Court issued a completely flawed decision tonight and we will swiftly file an appeal to the United States Supreme Court and a concurrent request for a stay of this deeply undemocratic decision,” Trump campaign spokesman Steven Cheung said in a statement that accused “the all-Democrat appointed Colorado Supreme Court” of being part of a scheme to “interfere in an election on behalf of Crooked Joe Biden.”
The Colorado Supreme Court said that they would stay their ruling until Jan. 4 in case the decision goes under review by a higher court. The state begins to print names on presidential primary ballots on Jan. 5.
Here’s what to know.
Why did the Colorado Supreme Court kick Trump off the ballot?
In September, Colorado electors filed the initial petition to remove Trump from the Republican presidential primary ballot. The six voters claimed that the former president should be ineligible under the 14th Amendment because he engaged in an act of insurrection on Jan. 6, 2021.
The lawsuit made its way to the district court, which ruled that Trump did engage in insurrection, but that the rules in the 14th Amendment did not apply to the presidency, and that therefore Trump should remain on the presidential ballot.
The Colorado Supreme Court agreed that Trump engaged in an insurrection, but ruled that Section 3 of the 14th Amendment does, in fact, apply to the presidency, meaning that Trump could not appear on the ballot.
What is Section 3 of the 14th Amendment?
The 14th Amendment was ratified shortly after the Civil War to abolish slavery, but also included other provisions. Section 3 of the 14th amendment says that “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office…who, having previously taken an oath…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
In other words, Section 3 disqualifies people from certain positions of power if they have previously taken an oath to uphold the Constitution and engaged in an insurrection, or given some sort of aid to a U.S. enemy.
This provision was most recently applied in Sept. 2022, when a New Mexico County commissioner was removed from his position after his role in the Jan. 6 insurrection.
How does Trump's behavior on Jan. 6 relate to the 14th Amendment?
Both the district and state supreme court of Colorado found that the actions that took place on Jan. 6, 2021, when Trump supporters stormed the capitol while President Joe Biden’s win was being certified, constituted an insurrection. They also agreed that the former president engaged in that insurrection.
Last year, the Jan. 6 Committee assembled by the House to investigate the effort to overturn the 2020 election, issued a final report that made the case that Trump was the main cause of the insurrection. The report said that Trump and his inner circle “engaged in at least 200 apparent acts of public or private outreach, pressure, or condemnation, targeting either State legislators or State or local election administrators, to overturn State election results.” The report also pointed to Trump repeatedly alleging that there was voter fraud without evidence and his lack of action to stop his supporters after they had converged on the Capitol.
The committee recommended using the 14th Amendment to prevent people who engaged in the insurrection from being elected to office.
Do legal experts agree with the ruling?
Legal experts have been mixed about whether Section 3 applies to the presidency because it is not one of the positions explicitly stated in the 14th Amendment.
But the section says it applies “to any office,” which some say includes a candidate for president. A report by the Congressional Research Service adds that while judgeships are not directly mentioned in Section 3, the bar has historically been applied to them.
Two leading legal scholars, William Baude and Michael Stokes Paulsen, released a 126-page report this year finding that the 14th Amendment does disqualify Trump from office. Other scholars, like Steven Calabresi, founder of the conservative legal group known as the Federalist Society, initially agreed with their research though he later changed his mind. That is because he interprets Section 3 to apply to appointed officials not elected ones, when the text references officers of the United States, according to the New York Times.
Have other states considered this claim?
In at least 13 other states, including Alaska, Arizona, Nevada, Texas, Vermont and Wisconsin, there are also existing lawsuits attempting to disqualify Trump from the ballot. Some of these cases have already been dismissed by at least one court, according to the legal website Lawfare.
What will the U.S. Supreme Court do?
The Supreme Court has been asked to overturn the Colorado Supreme Court’s decision. The court has not yet decided whether it will take up the case, but they have a limited timeline because Colorado’s primary ballot deadline falls in early January.
According to NBC News, even if the Supreme Court chooses to hear the case, it would likely take time to issue a ruling, meaning that their decision would more likely apply to the general election as opposed to the primaries.
The court could also decide that the lawsuit is moot, or has lost its significance to be resolved, once the Jan. 4 deadline passes.
The Supreme Court has also been asked to intervene over a separate Trump-related case about whether the former president can be prosecuted on charges that he attempted to overturn the 2020 presidential election.
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