The Colorado Supreme Court ruled 4-3 Tuesday that former President Donald Trump is ineligible to appear on the state’s primary ballot in 2024, marking the first time in United States history that Section Three of the 14th Amendment has been used to disqualify a presidential candidate.
Section Three of the 14th Amendment states:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The two primary points of disagreement between the former president’s legal counsel and his challengers when it comes to the proper interpretation of Section Three are (1) whether or not the provision is applicable to the presidency and (2) whether or not former President Trump’s actions and inactions on January 6, 2021 amounted to “engag[ing] in insurrection” or ‘giv[ing] aid or comfort to the enemies” of the United States.
On September 6, a group of Republican Electors in Colorado submitted a Verified Petition challenging the Colorado Secretary of State’s authority to place Trump on the presidential primary ballot in 2024 on the grounds that the former president was disqualified from holding office under Section Three of the 14th Amendment.
After a five-day trial that began on October 30, a Colorado district court determined that Section Three is not applicable to the presidency and therefore denied the Electors’ petition to keep Trump off the state’s ballot.
The court did, however, assert that the events that occurred on January 6, 2021 amounted to an “insurrection,” that the former president “engaged in” insurrection “through his personal actions,” and that Trump’s “speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.”
Both the challengers and the former president requested that the Colorado Supreme Court review the district court’s ruling.
On appeal, the Colorado Supreme Court affirmed these preliminary conclusions made by the lower court concerning the character and legality of what happened on January 6, 2021, but reversed their interpretation of Section Three’s applicability.
“The sum of these parts is this,” the state Supreme Court wrote in their opinion. “President Trump is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot.”
The court stayed its ruling until January 4, 2024 — the day before the Colorado Secretary of State must certify the content of the presidential primary ballot — pending any potential review by the United States Supreme Court.
If Supreme Court review is sought prior to the January 4, 2024 deadline, the stay will remain in place and the former president’s name will appear on next year’s primary ballot unless an order or mandate requiring otherwise was issued by the Supreme Court.
In addition to the 133-page majority opinion, the three justices who did not vote to block the former president from the ballot issued dissenting opinions of their own.
Chief Justice Brian Boatright argued in his dissent that the case should have been dismissed by the court because disqualifying Trump under Section Three of the 14th Amendment “presents uniquely complex questions that exceed the adjudicative competence” of section 1-1-113 of Colorado’s Election Code.
“Simply put, section 1-1-113 was not enacted to decide whether a candidate engaged in insurrection,” the Chief Justice wrote.
“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,” Chief Justice Boatright concluded.
Justice Carlos Samour argued in his dissent that barring the former president from Colorado’s primary ballot “flies in the face of the due process doctrine.”
“In my view, what transpired in this litigation fell woefully short of what due process demands,” Justice Samour wrote. “Because I perceive the majority’s ruling that Section Three is self-executing to be the most concerning misstep in today’s lengthy opinion, I focus on that aspect of the legal analysis.”
According to Samour’s analysis, Section Three “is not self-executing,” and “Congress alone is empowered to pass any enabling legislation.”
“My colleagues in the majority turn Section Three on its head and hold that it licenses states to supersede the federal government,” Samour said. “Respectfully, they have it backwards.”
Justice Maria E. Berkenkotter argued in her dissent that the state’s Election Code does not authorize the courts to “decide whether a presidential primary candidate is disqualified under Section Three of the Fourteenth Amendment to the U.S. Constitution from being listed on Colorado’s presidential primary ballot.”
Colorado is not the only state where the former president has been questioned on his ability to appear on the primary ballot in 2024.
A number of states across the country — including Maine — have seen challenges to the former president’s eligibility to be listed as a presidential candidate in next year’s primary election.
Last Friday, Maine Secretary of State Shenna Bellows held an eight hour hearing on the question and is expected to issue a determination on the former president’s eligibility on Friday, December 22.
The challengers argued that Secretary Bellows has the authority to block Trump from accessing Maine’s ballot and ought to do so because — according to their understanding of the facts at hand — Trump took part in an insurrection on January 6, 2021, thereby disqualifying him for the presidency under Section Three of the 14th Amendment.
Trump’s legal counsel, on the other hand, refuted each aspect of their interpretation, arguing that Bellows does not have the authority to block a federal candidate from accessing the state’s ballot and that, regardless of her authority, Trump could not be disqualified from the presidency under Section Three anyway.
According to their interpretation of Section Three, the provision is inapplicable to the Office of the President. For the positions to which it does apply, they argued that it only prevents individuals from assuming an office — not running for it — as Congress has the ability to overrule a disqualification by a two-thirds vote in each chamber.
It is also important to note that Trump’s legal counsel strongly contested the allegation underlying the challengers’ claim that Trump engaged in or incited an insurrection on January 6, 2021.
“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,” spokesman for the Trump campaign Steve Cheung said in a statement, according to CBS News. “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.”
Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington — the group that brought the case against Trump in Colorado — has also issued a statement on the decision.
“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,” Bookbinder said in the statement.
“It is not only historic and justified, but is necessary to protect the future of democracy in our country,” Bookbinder stated.
According to the Associated Press, Trump’s legal spokesperson Alina Habba told the media Tuesday night that the former president will be appealing this decision to the United States Supreme Court.
“This ruling, issued by the Colorado Supreme Court, attacks the very heart of this nation’s democracy,” Habba said. “It will not stand, and we trust that the Supreme Court will reverse this unconstitutional order.”
Although Trump did not directly address the Colorado court’s ruling during his rally Tuesday night in Iowa, the former president did address the decision on the social media platform Truth Social on Wednesday morning.
“WHAT A SHAME FOR OUR COUNTRY!!!” Trump wrote in one of several posts related to the ruling.
“BIDEN SHOULD DROP ALL OF THESE FAKE POLITICAL INDICTMENTS AGAINST ME, BOTH CRIMINAL & CIVIL,” the former president wrote in another. “EVERY CASE I AM FIGHTING IS THE WORK OF THE DOJ & WHITE HOUSE. NO SUCH THING HAS EVER HAPPENED IN OUR COUNTRY BEFORE. BANANA REPUBLIC??? ELECTION INTERFERENCE!!!”
“A SAD DAY IN AMERICA!!!” Trump said in a post made at approximately 8 am Wednesday.
The former president also posted several clips from Fox News featuring hosts, as well as legal analysts, discussing the Colorado Supreme Court’s Tuesday ruling.
Given the way that the Colorado decision was written — and the expectation that Trump will appeal the case to the Supreme Court — the former president is still likely to appear on the state’s primary ballot next year unless the Supreme Court either declines to hear the case or issues an opinion upholding the Colorado ruling.
The United States Supreme Court has not yet announced whether or not it will agree to hear the case.