In a filing on Wednesday former President Donald Trump told the justices that the “Colorado Supreme Court has no authority to deny” him a place on the state’s ballot in the 2024 presidential election. Trump asked the justices to overturn a ruling by the state supreme court that would leave him off Colorado’s primary ballot because of his role in the Jan. 6, 2021, attacks on the U.S. Capitol. Pointing to a Dec. 28 ruling by a Maine official that removed Trump from that state’s primary ballot, Trump contended (in a filing obtained by the Washington Post) that, if allowed to stand, the Colorado court’s decision could be “used as a template to disenfranchise tens of millions of voters nationwide.”
The Colorado Supreme Court ruled on Dec. 19 that Trump is 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 Republican Party filed its petition for review on Dec. 28. Warning that the Colorado Supreme Court’s decision will “not only distort the 2024 presidential election but will also mire courts henceforth in political controversies over nebulous accusations of insurrection,” the party urged the justices to act quickly.
While defending the Colorado Supreme Court’s decision as correct, the voters nonetheless agreed with the party that the justices should weigh in quickly on two questions: whether Section 3 applies to Trump and whether states can enforce Section 3. They asked the justices to consider the party’s petition for review at their private conference on Jan. 5.
Colorado Secretary of State Jena Griswold echoed the voters’ contention that the Supreme Court should take up the Section 3 questions soon. The justices’ “resolution of the matter is important to ensure that all Coloradans’ votes are cast only for candidates who are qualified to hold the office of president,” Griswold wrote.
Trump came to the Supreme Court on Wednesday, urging the justices to grant review and summarily reverse – that is, without additional briefing or oral argument – the Colorado Supreme Court’s decision and “return the right to vote for their candidate of choice to the voters.”
Trump argued that Congress, rather than state courts, should decide whether someone is eligible to run for president. But even if there were a role for state courts in making that determination, he continued, the Colorado Supreme Court was wrong: Section 3 does not apply to Trump because the president is not an “officer of the United States” and the presidency is not an “office under the United States.”
Trump also disputed the Colorado Supreme Court’s characterization of the events of Jan. 6 as an “insurrection.” Citing the Black Lives Matter protests in the summer of 2020, Trump suggested that “[i]n the context of the history of violent American political protests, January 6 was not insurrection and therefore no justification for invoking Section 3.” Moreover, Trump added, he “never told his supporters to enter the Capitol,” instructing them only to protest “peacefully and patriotically.”
This post is also published on SCOTUSblog.
