Washington: In a historic decision on Tuesday, the Colorado Supreme Court barred Donald Trump from running in the state’s presidential primary after determining that he had engaged in insurrection on January 6, 2021.
The 4-3 ruling marked the first time a court has kept a presidential candidate off the ballot under an 1868 provision of the Constitution that prevents insurrectionists from holding office.
The ruling comes as courts consider similar cases in other states.
If other states reach the same conclusion, Trump would have a difficult — if not impossible — time securing the Republican nomination and winning in November.
The decision is certain to be appealed to the US Supreme Court, but it will be up to the justices to decide whether to take the case. Scholars have said only the nation’s high court can settle the issue of whether the January 6 attack on the US Capitol constituted an insurrection and whether Trump is banned from running.
“A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution,” the decision reads. “Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”
The court stayed its decision until January 4, or until the US Supreme Court rules on the case. Colorado officials say the issue must be settled by January 5, the deadline for the state to print its presidential primary ballots.
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.
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 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 Colorado ruling stands in contrast with the Minnesota Supreme Court, which last month decided that the state party can put anyone it wants on its primary ballot. It dismissed a Section 3 lawsuit but said the plaintiffs could try again during the general election.
In another 14th Amendment case, a Michigan judge ruled that Congress, not the judiciary, should decide whether Trump can stay on the ballot. That ruling is being appealed. The liberal group behind those cases, Free Speech For People, also filed another lawsuit in Oregon seeking to bounce Trump from the ballot there.
The US Supreme Court justices separately are weighing a request from special counsel Jack Smith to expedite consideration of Trump’s immunity claim in one of his criminal cases — his federal indictment in Washington on charges of illegally trying to obstruct President Biden’s 2020 election victory. Trump has denied wrongdoing.
The majority determined the trial judge was allowed to consider Congress’s investigation of the January 6 attack on the US Capitol, which helped determine that Trump engaged in insurrection.
“We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection,” the majority wrote.
Trump campaign spokesman Steven Cheung called the decision “completely flawed” and said the campaign would appeal it to the US Supreme Court.
“We have full confidence that the Supreme Court will quickly rule in our favour and finally put an end to these unAmerican lawsuits,” he said in a statement.
Primaries on March 5
In its decision, the Colorado Supreme Court said it was staying the decision until January 4 and would keep that stay in place if an appeal is filed to the US Supreme Court.
That means Trump’s name could be placed on the ballot while the case is ongoing. Colorado is one of more than a dozen states scheduled to hold primaries on March 5, also known as Super Tuesday.
Three years after the end of the Civil War, the nation in 1868 adopted the 14th Amendment, granting citizenship to those born or naturalised in the United States and guaranteeing civil rights to all Americans, including those who had been enslaved. In addition, Section 3 of the amendment barred people from office if they swore an oath to the Constitution and then engaged in insurrection. The measure was meant to keep former Confederates from returning to power.
Six Republican and independent voters from Colorado invoked the provision in a lawsuit this fall meant to keep Trump off the ballot. After a week-long trial, Denver District Judge Sarah B. Wallace in November ruled that Trump had engaged in insurrection but could remain on the ballot because she determined Section 3 does not apply to those running for president.
The voters appealed the part of the ruling that kept him on the ballot, while Trump appealed the part that concluded that he had engaged in insurrection.
The Colorado Supreme Court upheld much of Wallace’s findings but reversed her decision on key points by finding Section 3 applies to the presidency.
“We do not reach these conclusions lightly,” the majority wrote. “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.”
WHat does Section 3 say
Section 3 bars those who engage in insurrection from holding office and does not mention who can run for office. The majority rejected the idea that that meant the state could not keep candidates off the ballot who did not meet qualifications for serving as president, such as being at least 35 years old and being a US citizen.
“It would mean that the state would be powerless to exclude a twenty-eight-year-old, a non-resident of the United States, or even a foreign national from the presidential primary ballot in Colorado,” the majority wrote.
The case was brought with the help of Citizens for Responsibility and Ethics in Washington. The group’s president, Noah Bookbinder said the decision is “not only historic and justified, but is necessary to protect the future of democracy in our country.”
The three dissenters cited different reasons for why they disagreed with the majority. One would have dismissed the case because Trump has not been charged with insurrection, one would have dismissed because Trump has not been convicted of a crime and the third did not believe the court had the authority to decide the issue under the state’s elections code.
Reaction to the Colorado decision was swift.
Constitutional law scholar Laurence Tribe applauded the Colorado court’s ruling on social media.
“As I’ve been urging and predicting, the Colorado Supreme Court has ruled Trump constitutionally disqualified from the presidential primary. Trump will seek and immediately get Supreme Court review,” Tribe, a professor emeritus at Harvard University, posted on X, formerly Twitter.
“Election interference, plain and simple,” wrote Representative Eric Burlison on X, formerly Twitter.
“Of course he should be banned from the presidency forever,” wrote Rep. Bill Pascarell, Jr. on social media.
Vivek Ramaswamy, who is running against Trump for the Republican nomination, said in a statement to The Post: “I pledge to withdraw from the Colorado GOP primary ballot until Trump is also allowed to be on the ballot, and I demand that Ron DeSantis, Chris Christie, and Nikki Haley to do the same immediately — or else they are tacitly endorsing this illegal manoeuvre which will have disastrous consequences for our country.”
“I do not believe Donald Trump should be prevented from being president of the United States by any court,” former New Jersey governor Chris Christie told a crowd on Tuesday at a New Hampshire town hall. “I think it’s bad for our country,” if that happens, and “I think it would cause a lot of anger” if that choice was taken away, he said.
Christie said he had not read the decision, but said it was inappropriate to punish Trump for inciting an insurrection on Jan. 6 without having a criminal trial on that matter.
In separate cases, the Minnesota Supreme Court and a Michigan appeals court previously declined to remove Trump’s name from the primary ballot in those states. Meanwhile, a Texas tax consultant has gotten no traction with a string of lawsuits he has filed on the issue.