Trump Stays on Colorado Ballot as State GOP Appeals to Supreme Court

Former President Donald Trump prepares to testify during his trial in New York State Supreme Court in New York City on Nov. 6, 2023. David Dee Delgado/Getty Images

With the Colorado Republican Party’s appeal to the U.S. Supreme Court to keep former president and current GOP front-runner Donald Trump on the state’s primary ballot, President Trump is near certain to stay on the ballot.

The Colorado Secretary of State’s office, which oversees elections in the state, said that “Donald Trump will be included as a candidate on Colorado’s 2024 Presidential Primary Ballot when certification occurs on January 5, 2024, unless the U.S. Supreme Court declines to take the case or otherwise affirms the Colorado Supreme Court ruling.”

Secretary of State Jena Griswold added in a comment that she supports the court’s decision to disqualify President Trump.

“Donald Trump engaged in insurrection and was disqualified under the Constitution from the Colorado Ballot. The Colorado Supreme Court got it right,” she stated.

“This decision is now being appealed. I urge the U.S. Supreme Court to act quickly, given the upcoming presidential primary election.”

On Dec. 19, the state’s highest court ruled President Trump ineligible as a candidate under Section 3 of the 14th Amendment, which stipulates that people who have taken an oath of office and then participated in an “insurrection” or “rebellions” cannot return to office without a two-thirds vote from Congress to remove the restriction.

Activists have argued that the Jan. 6, 2021, breach of the U.S. Capitol constituted an insurrection, leading legal scholars and experts in recent months to debate the application of the Civil War-era statute to President Trump’s eligibility for office.

Lawsuits challenging his eligibility have been filed in about half the states across the nation, but both federal and state judges have largely dismissed the cases on procedural and jurisdictional grounds. Reasons have included the interpretation that primaries and political party functions aren’t governed by state lawmakers and the rejection of the idea that the framers of the 14th Amendment meant for each state to determine its own definition of “insurrection.”

Meanwhile, Maine’s top election official on Dec. 28 removed President Trump from the state’s 2024 ballot. Secretary of State Shenna Bellows had earlier held a public hearing after three challenges to President Trump’s eligibility were submitted to her office.

Attorneys for President Trump had requested that she recuse herself from the decision-making process after discovering she has made several public statements describing Jan. 6 as an “insurrection” and in favor of impeaching President Trump.

Will The Supreme Court Act?

The Colorado Supreme Court ruling included several specific conditions. It had stayed its own order to remove President Trump from the ballot until Jan. 4, 2024, just one day before the deadline to certify the primary ballots. That stay would be lifted if no party sought an appeal in the U.S. Supreme Court. Once an appeal is filed, the secretary is ordered to follow any U.S. Supreme Court decision instead.

If the U.S. Supreme Court decides to reject the case by Jan. 4, Colorado will remove President Trump from the primary ballot.

But barring that, or an explicit order from the U.S. Supreme Court to remove him from the ballot before Jan. 4, he will stay on the ballot.

Legal scholars and state secretaries have for months been expecting the U.S. Supreme Court to ultimately provide an answer for this novel legal theory challenging President Trump’s eligibility. Even before considering whether Jan. 6 constituted an “insurrection,” state judges and amici experts expressed skepticism that Section 3 is meant for individual states or courts to decide.

The Colorado GOP presented three questions to the U.S. Supreme Court: whether Section 3 applies to presidents, whether Section 3 is self-executing and allows individual states to decide to remove candidates without input from Congress, and whether denying a political party the right to put any candidates it chooses on the primary ballot violates the First Amendment.

Spokespeople for President Trump also announced their intention to file a petition for immediate review before the U.S. Supreme Court but didn’t indicate what sort of legal question they would present.

The high court may yet decide to reject the case; it could do so after Jan. 4, and President Trump would still appear on the Colorado primary ballot. The Supreme Court already declined to hear one such 14th Amendment appeal in October, although the situation has changed with Colorado explicitly finding President Trump ineligible.

Though President Trump would stay on the primary ballot without action from the U.S. Supreme Court, another wave of disqualification challenges may emerge before the general elections.

Having already determined President Trump ineligible, Colorado may be poised to remove President Trump from the general election ballot.

The Minnesota Supreme Court also earlier dismissed an eligibility challenge without prejudice, explaining that primaries are a party matter, but the challenge could be brought regarding the general election.

Colorado remains the only state to have heard arguments regarding “insurrection” in court, holding a week-long trial in which plaintiffs presented a case largely based on the controversial January 6 Select Committee report. Attorneys for President Trump argued the report shouldn’t have been allowed as evidence, pointing to the bias of committee members, but judges faulted the attorneys for not attempting to refute individual facts and arguments pulled from the report.