The Colorado Supreme Court has declared former President Donald Trump ineligible for the White House under the US Constitution’s insurrection clause and removed him from the state’s presidential primary ballot, setting up a likely showdown in the nation’s highest court to decide whether the front-runner for the GOP nomination can remain in the race.
The decision from a court whose justices were all appointed by Democratic governors marks the first time in history that Section 3 of the 14th Amendment has been used to disqualify a presidential candidate.
“A majority of the court holds that Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment,” the court wrote in its 4-3 decision.
Colorado’s highest court overturned a ruling from a district court judge who found that Trump incited an insurrection for his role in the January 6, 2021, attack on the Capitol, but said he could not be barred from the ballot because it was unclear that the provision was intended to cover the presidency.
The court stayed its decision until January 4, or until the US Supreme Court rules on the case.
“We do not reach these conclusions lightly,” wrote the court’s majority. “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 favour, and without being swayed by public reaction to the decisions that the law mandates we reach.”
Trump’s attorneys had promised to appeal any disqualification immediately to the nation’s highest court, which has the final say about constitutional matters.
His campaign said it was working on a response to the ruling.
Trump lost Colorado by 13 percentage points in 2020 and doesn’t need the state to win next year’s presidential election.
But the danger for the former president is that more courts and election officials will follow Colorado’s lead and exclude Trump from must-win states.
Colorado officials say the issue must be settled by January 5, the deadline for the state to print its presidential primary ballots.
Dozens of lawsuits have been filed nationally to disqualify Trump under Section 3, which was designed to keep former Confederates from returning to government after the Civil War.
It bars from office anyone who swore an oath to “support” the Constitution and then “engaged in insurrection or rebellion” against it, and has been used only a handful of times since the decade after the Civil War.
The Colorado case is the first where the plaintiffs succeeded.
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After a weeklong hearing in November, District Judge Sarah B. Wallace found that Trump indeed had “engaged in insurrection” by inciting the January 6 attack on the Capitol, and her ruling that kept him on the ballot was a fairly technical one.
Trump’s attorneys convinced Wallace that, because the language in Section 3 refers to “officers of the United States” who take an oath to “support” the Constitution, it must not apply to the president, who is not included as an “officer of the United States” elsewhere in the document and whose oath is to “preserve, protect and defend” the Constitution.
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The provision also says offices covered include senator, representative, electors of the president and vice president, and all others “under the United States”, but doesn’t name the presidency.
The state’s highest court didn’t agree, siding with attorneys for six Colorado Republican and unaffiliated voters who argued that it was nonsensical to imagine the framers of the amendment, fearful of former Confederates returning to power, would bar them from low-level offices but not the highest one in the land.
“You’d be saying a rebel who took up arms against the government couldn’t be a county sheriff, but could be the president,” attorney Jason Murray said in arguments before the court in early December.
Trump campaign vows to ‘swiftly’ appeal
The Trump campaign says it will “swiftly file an appeal” of the Colorado Supreme Court’s decision.
“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. 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,” Trump campaign spokesperson Steven Cheung said in a statement.
Trump denies wrongdoing regarding January 6 and has decried the 14th Amendment lawsuits as an abuse of the legal process. He is under federal and state indictment in connection with his attempts to overturn the 2020 election – and he has pleaded not guilty.
The ruling comes as a similar appeal is pending in Michigan, where Trump also prevailed. He has beaten back 14th Amendment challenges in several key states, while the challengers have pledged to keep fighting in the courts potentially even after the 2024 presidential election, if he wins.
The court issued several key findings in its sweeping decision:
• Colorado state law allows voters to challenge Trump’s eligibility under the federal constitution’s “insurrectionist ban.”
• Colorado courts can enforce the ban without any action from Congress.
• The insurrectionist ban applies to the presidency.
• The January 6, 2021, attack on the US Capitol was an insurrection.
• Trump “engaged in” the insurrection.
• Trump’s speech “inciting the crowd” on January 6 was “not protected by the First Amendment.”
Chief Justice Brian Boatright, one of the three dissenters on the seven-member court, wrote that he believes Colorado election law “was not enacted to decide whether a candidate engaged in insurrection,” and said he would have dismissed the challenge to Trump’s eligibility.
“In the absence of an insurrection-related conviction, I would hold that a request to disqualify a candidate under Section Three of the Fourteenth Amendment is not a proper cause of action under Colorado’s election code,” he wrote.
A group of Republican and independent voters filed the lawsuit, in coordination with a liberal government watchdog group, Citizens for Responsibility and Ethics in Washington. A district judge held a weeklong trial and issued a stunning ruling in November that labeled Trump as an insurrectionist but said the presidency is exempt from the vague ban in the 14th Amendment.
The Colorado Supreme Court held oral arguments earlier this month, where the justices appeared divided at times. Some of their questions suggested they were open to the idea that the ban applies to Trump, while at other times, some justices were unsure if the trial court even had jurisdiction to adjudicate the matter in the first place.
