The extraordinary 4-3 ruling makes Colorado the first and only state to disqualify President Trump from appearing on a state primary ballot. The decision revolved around an interpretation of the 14th Amendment, which bars certain individuals from public office if they have engaged in an “insurrection.”
President Trump has announced he will appeal the decision and denounced it as a partisan attempt to block his White House bid.
The Colorado high court, composed of all Democrat appointees, stayed its ruling until Jan. 4, 2024, “pending any review by the U.S. Supreme Court.”
If an appeal is lodged with the U.S. Supreme Court by Jan. 4, the Colorado Secretary of State will be required to continue to include President Trump on the primary ballot. Otherwise, he will be removed from the primary ballot.
“We conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot,” reads the majority opinion.
“Therefore, the Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him,” the order added, as Colorado state law does not permit write-in votes to be counted for ineligible candidates.
The ruling reverses a lower court ruling that President Trump was eligible to appear on the ballot because while he did “engage” in an “insurrection” on Jan. 6, 2021, Section 3 of the 14th Amendment does not apply to presidents. The Colorado Supreme Court was unpersuaded by both the lower court and President Trump’s arguments that Section 3 did not apply to presidents.
‘Uncharted Territory’
The court affirmed the lower court decision in part, ruling that Congress does not need to pass legislation in order to implement Section 3 of the 14th Amendment, and that it is self-executing, and not beyond the jurisdiction of the courts.As such, “the district court did not abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial,” nor err in its ruling that the Jan. 6, 2021, events constituted an “insurrection,” the order added.
The Colorado Supreme Court ruled that President Trump’s speech on and before Jan. 6, 2021, “was not protected by the First Amendment” because it was speech that was “likely to incite such imminent lawlessness and violence.”
The unsigned order acknowledged the gravity of the ruling.
“We do not reach these conclusions lightly. 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,” the order reads.
“We are also cognizant that we travel in uncharted territory, and that this case presents several issues of first impression.”
Similar challenges have been heard or are pending in half the states across the nation, and state courts have thus far ruled that they do not have the jurisdiction to interpret and apply Section 3 of the 14th Amendment for a presidential primary.
President Trump’s campaign called it a partisan ruling.
“Democrat Party leaders are in a state of paranoia over the growing, dominant lead President Trump has amassed in the polls. They have lost faith in the failed Biden presidency and are now doing everything they can to stop the American voters from throwing them out of office next November. ”
The campaign reiterated President Trump’s intention to appeal the ruling.
“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,” spokesperson Steven Cheung stated. “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.”
President Trump legal spokeswoman Alina Habba stated: “This ruling, issued by the Colorado Supreme Court, attacks the very heart of this nation’s democracy. It will not stand, and we trust that the Supreme Court will reverse this unconstitutional order.”
Dissenting Opinions
The 200-plus page opinion included dissenting opinions by Chief Justice Brian D. Boatright, Justice Carlos A. Samour, Jr., and Justice Maria E. Berkenkotter, who largely echoed the jurisdictional concerns other state courts have raised.Justice Boatright agreed with the majority opinion that the Colorado election code allows for adjudication of a candidate’s qualifications, but opined that a Section 3 disqualification was too far beyond the scope of what that law allows. He wrote that the nature of the petition brought before the court and the statutes it cited were “incompatible.”
“Simply put, section 1-1-113 was not enacted to decide whether a candidate engaged in insurrection,” he wrote. “In my view, this cause of action should have been dismissed.”
Justice Samour was unconvinced that Section 3 is self-executing, noting that Colorado’s election law differs from that of every other state, and “they won’t be able to enforce Section 3” as Colorado has with the court’s new ruling.
“That, in turn, will inevitably lead to the disqualification of President Trump from the presidential primary ballot in less than all fifty states, thereby risking chaos in our country,” he wrote. “This can’t possibly be the outcome the framers intended.”
He added that Section 3 does not spell out how it should be executed, “that is, it sheds no light on whether a jury must be empaneled or a bench trial will suffice, the proper burdens of proof and standards of review, the application of discovery and evidentiary rules, or even whether civil or criminal proceedings are contemplated.”
He was concerned procedural due process could not be upheld with one state barring the current leading Republican presidential candidate from the ballot. Justice Samour added that he would have upheld the district court’s decision, but “on other grounds.”
“My colleagues in the majority turn Section Three on its head and hold that it licenses states to supersede the federal government. Respectfully, they have it backwards,” he wrote.
Justice Berkenkotter disagreed that the state’s election laws authorize state courts to decide a candidate’s eligibility to appear on a presidential primary ballot, under Section 3 of the 14th Amendment.
She opined that the state legislature has not conferred courts this power, and therefore the district court erred in issuing its ruling as well.
Justice Berkenkotter pointed to the court deadlines the election code sets as evidence.
Overturned Ruling
Colorado District Court Judge Sarah Wallace had issued the ruling after a weeklong trial that covered everything from whether the events of January 6 constituted an insurrection to the application of Section 3 of the 14th Amendment. It was an unusual move for a state court, and has to date been the only court that has held a trial for 14th Amendment challenges to President Trump’s eligibility as a candidate for the presidency.The 14th Amendment, ratified after the Civil War, included a third section meant to prevent officers who left their posts to join the Confederacy from returning to their positions in the government, unless Congress deemed them eligible with a two-thirds vote. It has seldom been applied in the post-war era, and scholars have been vocal in their disagreement over its application since a legal theory that this could disqualify President Trump from taking office gained traction.
After the lower court issued its decision, both the petitioners and the intervenors filed to appeal.
The activists argued that the lower court erred in ruling that Section 3 of the 14th Amendment does not apply to presidents.
President Trump argued the lower court erred in issuing rulings regarding the application of Section 3 of the 14th Amendment because state courts have no such jurisdiction.
