Lawyers for Colorado’s Republican Party came to the Supreme Court on Wednesday, asking the justices to overturn a ruling by that state’s highest court that would leave former President Donald Trump off Colorado’s primary ballot in 2024 because of his role in the Jan. 6, 2021, attacks on the U.S. Capitol. Lawyer Jay Sekulow told the justices that the Colorado Supreme Court’s decision “presents a constitutional crisis, national in scope.”
Sekulow warned of “catastrophic effects” if the state supreme court’s decision is allowed to stand, predicting that “any voter will have the power to sue to disqualify any political candidate,” which will “not only distort the 2024 presidential election but will also mire courts henceforth in political controversies over nebulous accusations of insurrection.”
Sekulow urged the court to take up the case quickly “to prevent the Colorado Supreme Court’s decision from having an irreparable effect on the electoral process.” He indicated that he was “prepared to abide by whatever expedited processes this Court may set.”
On Dec. 19, the Colorado Supreme Court ruled that Trump was ineligible to serve as president under Section 3 of the 14th Amendment to the Constitution, which bars anyone who has served as “an officer of the United States” and has previously taken an oath to support the U.S. Constitution from holding “any office . . . under the United States” if he has “engaged in insurrection.” Passed by Congress in 1866 and ratified in 1868, the provision was originally intended to disqualify individuals who had been federal (or state) government officials before the Civil War and had sworn to uphold the Constitution but then served in the Confederacy. The bar on service can only be overcome by a two-thirds vote of both the House of Representatives and the Senate.
A group of registered Republicans and unaffiliated voters eligible to vote in Colorado’s presidential primary had brought the lawsuit, arguing that Trump should not be included on the state’s primary ballot because as president he had sworn an oath to support the Constitution but had engaged in insurrection on Jan. 6.
After a five-day trial, a lower court agreed that Trump engaged in insurrection but concluded that Section Three does not apply to the president. Specifically, it concluded, the presidency is not an “office . . . under the United States,” and the president is not an “officer of the United States.”
In a lengthy ruling, the Colorado Supreme Court reversed. It held that Trump was disqualified under Section 3 from serving as president and it barred the Colorado secretary of state from listing him on the primary ballot. But the court put its ruling on hold until Jan. 4, 2024 – the deadline for the secretary of state to certify the ballot – to give the U.S. Supreme Court time to weigh in. And it noted that as long as either Trump or the Colorado Republican Party, which like Trump had joined the lawsuit to defend his right to appear on the ballot, sought review in the Supreme Court by the Jan. 4 deadline, the secretary “will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court.”
The Colorado lawsuit against Trump was not the first attempt to use Section 3 to bar Republican politicians from the ballot in the wake of the Jan. 6 attacks. Last year Georgia officials rebuffed efforts to rely on Section 3 to disqualify U.S. Rep. Marjorie Taylor Greene from seeking reelection. A state administrative law judge agreed that Greene’s “heated rhetoric may well have contributed to the environment that ultimately led to” the attack on the Capitol, but he concluded that she had not engaged in an insurrection.
And in Sept. 2022, a court in New Mexico ruled that Couy Griffin could not serve as a county commissioner because he had participated in the Jan. 6 attack on the Capitol. Griffin, the founder of a group called Cowboys for Trump, was sentenced to 14 days in prison after he was convicted on a charge of entering and remaining on restricted grounds.
Efforts to rely on Section 3 to keep Trump off the ballot in 2024 gained momentum after the release in August of an upcoming article in the University of Pennsylvania Law Review by two conservative law professors, William Baude and Michael Stokes Paulsen. Baude and Paulsen argue that Section 3 does not apply only “to the circumstances of the Civil War and Reconstruction, even if the meaning of its terms may be illuminated by that experience and history.” Instead, they contend, “taking Section Three seriously means that its constitutional disqualifications from future state and federal officeholding extend to participants in the attempted overturning of the presidential election of 2020, including former President Donald Trump and others.”
Although challenges to Trump’s eligibility have been filed in other states, the Colorado Supreme Court is the first to hold that Section 3 bars Trump from appearing on the ballot. Earlier this year, the Minnesota Supreme Court threw out an attempt to remove Trump from that state’s ballot. It left the door open, however, for the challengers to seek to have Trump excluded from the general election ballot after the primaries.
And on Dec. 27, the Michigan Supreme Court declined to review a lower-court ruling that allowed Trump to appear on the state’s primary ballot. As in Minnesota, the lower court’s ruling does not foreclose a new challenge to Trump’s appearance on the general election ballot.
In his 33-page filing, Sekulow argued that the Colorado Supreme Court’s decision was wrong. Section 3, he asserted, does not apply to the president because, although the presidency may be an “office,” the “Constitution makes very clear that the President is not an officer of the United States.” Moreover, he added, Section 3 does not operate automatically: “Congress, and Congress alone, can enforce” it.
More broadly, Sekulow contended, the state supreme court’s decision excluding Trump from the ballot violates the Colorado Republican Party’s right under the First Amendment to have the candidates of its choice appear on the primary and general election ballots. “And it has done so,” Sekulow concluded, “based on a subjective claim of insurrection the state lacks any constitutional authority to make.”
In a motion filed simultaneously with his petition for review, Sekulow asked the court to decide the case by March 5, 2024 – Super Tuesday, when 16 states and one territory will hold their primary elections – or, at the latest, by the end of the court’s current term.
On Thursday the voters who filed the Colorado lawsuit urged the justices to act on the party’s appeal even more quickly. Telling the justices that “voting in Colorado happens mostly by mail and will begin for in-state residents once the ballots are mailed out on February 12,” the voters asked the justices to decide the case by Feb. 11, “so that voters in Colorado and elsewhere will know whether Trump is disqualified before they cast their ballots.” To ensure that the dispute is resolved quickly, the voters also encouraged the justices to set a deadline for Trump himself to seek review of the Colorado Supreme Court’s decision.