Washington — The Colorado Supreme Court ruled Tuesday that former President Donald Trump is disqualified from holding the presidency under the Constitution’s so-called insurrection clause and ordered the secretary of state to exclude his name from the state’s Republican presidential primary ballot.
The landmark decision from the divided Colorado Supreme Court that Trump cannot hold public office under the Civil War-era provision is unprecedented, and it marks the first time a court has found him to be ineligible to return to the White House due to his conduct surrounding the Jan. 6, 2021, attack on the U.S. Capitol. Never before has a court determined that a presidential candidate is disqualified under the clause, Section 3 of the 14th Amendment.
Asked about the Colorado Supreme Court’s ruling on Wednesday, President Biden told reporters it is up to the court to determine the application of Section 3, but said there’s “no question” Trump supported an insurrection.
The ruling does not apply outside of Colorado, and the state high court, whose justices were all appointed by Democratic governors, paused its decision until Jan. 4 — one day before the deadline for Colorado Secretary of State Jena Griswold to certify the candidates for the state’s March 5 primary.
“We conclude that because President Trump is disqualified from holding the office of President under Section Three, 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 wrote in an unsigned opinion. “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.”
Lawsuits challenging Trump’s candidacy have been filed in more than 25 states ahead of the 2024 election, though the Colorado case brought on behalf of six voters marks the most immediate threat to his campaign. National polls show Trump atop the field of candidates vying for the Republican presidential nomination.
Trump will appeal the decision to the U.S. Supreme Court, a spokesman for his campaign said, setting up a high-stakes showdown over his eligibility to run just as voters in early states begin casting their ballots in the Republican primaries. In pausing its decision, the Colorado Supreme Court said that if review to the nation’s highest court is sought before Jan. 4, its stay will remain in place, and the secretary will be required to list Trump on the 2024 primary ballot until the U.S. Supreme Court rules.
“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,” Steve Cheung, spokesman for the Trump campaign, said in a statement. “We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these unAmerican lawsuits.”
The seven-member Colorado Supreme Court divided 4-3 on the ruling, with its majority reversing the trial court’s finding as to the scope of Section 3 to conclude that it encompasses the office of the presidency and one who has taken an oath as president.
“President Trump asks us to hold that Section Three disqualifies every oathbreaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land,” the majority wrote. “Both results are inconsistent with the plain language and history of Section Three.”
In response to the decision, Griswold noted that it may be appealed and said she will “continue to follow court guidance on this important issue.”
Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, which brought the lawsuit in Colorado, praised the decision and said the group will work to ensure that it remains in place.
“The court’s decision today affirms what our clients alleged in this lawsuit: that Donald Trump is an insurrectionist who disqualified himself from office under Section 3 of the 14th Amendment based on his role in the January 6th attack on the Capitol, and that Secretary Griswold must keep him off of Colorado’s primary ballot. It is not only historic and justified, but is necessary to protect the future of democracy in our country,” he said in a statement.
The case adds to the ongoing legal issues facing Trump and his presidential campaign, including a criminal case related to the 2020 presidential election that is set to go to trial in March if allowed to move forward.
Section 3 of the 14th Amendment
The Colorado case hinged on whether Section 3 bars Trump from the nation’s highest office. The provision aims to prevent those who swore an oath to support the Constitution and engaged in insurrection from holding state or federal office.
Citizens for Responsibility and Ethics in Washington filed the lawsuit in Colorado state court on behalf of four Republican voters and two unaffiliated voters in September, arguing that Trump’s actions related to the Jan. 6 assault disqualified him under Section 3. Dozens of suits filed across the country have raised the same argument, though several have already been dismissed by state courts.
In November, a trial court in Denver found that the events on Jan. 6 satisfy the definition of insurrection, and concluded that Trump engaged in insurrection through incitement. Judge Sarah B. Wallace ultimately determined that the language of Section 3 is unclear as to whether it covered the presidency and the former president, and ordered Griswold to list Trump on the GOP presidential primary ballot.
The Colorado Supreme Court agreed to review the district court’s ruling, and held arguments in the case earlier this month. The justices weighed whether the events of Jan. 6 could be considered an “insurrection,” and, if so, one that Trump “engaged in.” They also considered whether the president is an “officer of the United States” under Section 3.
In their ruling, the four justices in the majority acknowledged that “we travel in uncharted territory, and that this case presents several issues of first impression.”
“We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us,” the majority wrote. “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.”
The justices rejected claims from Trump’s lawyers that the breach of the Capitol by his supporters on Jan. 6 was not an insurrection and instead concluded that the record in the case “amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country.”
In determining that Trump engaged in insurrection, the Colorado high court said there is “substantial evidence” that the former president was “laying the groundwork for a claim that the election was rigged” before the November presidential contest.
Trump, the majority said, “continued to fan the flames of his supporters’ ire, which he had ignited” by making false claims about the integrity of the election on social media and in a speech outside the White House on Jan. 6.
“President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary,” the justices wrote. “Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.”
The high court found that Trump “did not merely incite the insurrection,” but “continued to support it” by continuing to urge then-Vice President Mike Pence to unilaterally toss out state Electoral College votes.
“These actions constituted overt, voluntary, and direct participation in the insurrection,” the majority wrote.
Justices Richard Gabriel, Melissa Hart, Monica Márquez and William Hood were in the majority, while Chief Justice Brian Boatright and Justices Carlos Samour and Maria Berkenkotter dissented.
In his dissent, Samour warned that because other states differ from Colorado in their election laws, Trump will likely be disqualified from the presidential primary ballot in less than all 50 states, “risking chaos in our country.”
“This can’t possibly be the outcome the framers intended,” he wrote.
Other legal challenges
Enacted in 1868, Section 3 of the 14th Amendment sought to keep former Confederate civil and military officeholders from serving in federal or state government, and was primarily invoked in the years after the Civil War. It has seldom been used in modern times, and never against a former president.
The Jan. 6 riot and allegations that Trump incited the attack, followed by his decision to seek a second term in the White House, led to lawsuits in more than half the states seeking to keep him off the ballots.
In Michigan, a judge ruled in November in part that it is up to Congress to determine whether Trump is disqualified from holding public office. The state court of appeals affirmed the lower court’s ruling last week, finding that the secretary of state’s role in the presidential primary is “chiefly that of an administrator,” and it’s the political parties and candidates that determine who to place on the primary ballot.
“Even if Trump were disqualified from holding the office of President of the United States by the Insurrection Clause, nothing prevents the Michigan Republican Party from identifying him as a candidate in the upcoming primary election,” a three-judge appeals court panel concluded. Michigan voters challenging Trump’s candidacy have appealed to the state supreme court.
In Minnesota, the state’s high court dismissed a lawsuit seeking to exclude Trump from the ballot for the Republican primary because it is an “internal party election to serve internal party purposes” and doesn’t automatically qualify the winner for the general election ballot.
The Minnesota Supreme Court said voters could, however, pursue their case regarding the general election ballot after the state’s March 5 primary.
Republicans rally behind Trump
The decision from the Colorado Supreme Court prompted widespread condemnation from Republicans, including his opponents in the race for the party’s presidential nomination.
Nikki Haley, who served as U.S. ambassador to the United Nations in the Trump administration, said in a town hall Tuesday evening in Agency, Iowa, that “we don’t need judges making these decisions. We need voters to make these decisions. So I want to see this in the hands of the voters.”
“The last thing we want is judges telling us who can and can’t be on the ballot,” she added.
Trump’s other major challenger in the Republican primary, Florida Gov. Ron DeSantis, did not address the ruling during a campaign event in Ankeny, Iowa, butlater tweetedthat “the Left invokes ‘democracy’ to justify its use of power, even if it means abusing judicial power to remove a candidate from the ballot based on spurious legal grounds. SCOTUS should reverse.”
Former New Jersey Gov. Chris Christie, the most vocal GOP critic of Trump in the race for the White House, said the former president has not been tried for inciting an insurrection and is entitled to due process.
“I do not believe Donald Trump should be prevented from being president of the United States by any court,” he said during an event in New Hampshire. “I think he should be prevented from being president of the United States by the voters of this country.”
Former Arkansas Gov. Asa Hutchinson, who remains in the primary race,predicted that the court’s finding that Trump supported an insurrection “will haunt his candidacy.”
House Speaker Mike Johnson criticized the decision of the Colorado Supreme Court, calling it “nothing but a thinly veiled partisan attack.”
“Regardless of political affiliation, every citizen registered to vote should not be denied the right to support our former president and the individual who is the leader in every poll of the Republican primary,” he said in a post to social media. “We trust the U.S. Supreme Court will set aside this reckless decision and let the American people decide the next President of the United States.”