Trump Ballot Disqualification: Here’s What’s Next

Former President and 2024 presidential hopeful Donald Trump gestures at the end of a campaign event in Waterloo, Iowa, on Dec. 19, 2023. Kamil Krzaczynski/AFP via Getty Images

Court challenges arguing former President Donald Trump is disqualified from holding office and therefore needs to be removed from 2024 presidential primary ballots despite being the GOP frontrunner and likely nominee have been pending in about half the states across the country.

Tuesday night, Colorado became the first and only state to order President Trump’s removal from its primary ballot with a 4–3 vote at the Colorado Supreme Court.

However, the removal is unlikely to go into effect at all.

The judges noted the tight deadline to finalize primary ballots and inevitable appeal of their ruling, and put the order on pause with conditions.

Jan. 4 Deadline

A Colorado district court had previously ordered Secretary of State Jena Griswold to put President Trump on the ballot with a ruling that found he “engaged” in an “insurrection,” but was still eligible for the presidency because Section 3 of the Fourteenth Amendment did not apply to presidents.

The Colorado Supreme Court reversed the decision, ruled the district court had erred, and ordered the state secretary to remove President Trump from the ballot.

However, that order will not go into effect until Jan. 4, 2024—and only if President Trump does nothing.

The deadline for the secretary to certify the Colorado primary ballots is Jan. 5.

“If review is sought in the Supreme Court before the stay expires on Jan. 4, 2024, then the stay shall remain in place, and 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 order reads.

Appeal Imminent

Spokespersons for President Trump quickly announced their intention to appeal the decision, which would come in the form of a petition for immediate review by the U.S. Supreme Court.

If they do so by Jan. 4, the Colorado Supreme Court order will not go into effect, and the state secretary will keep President Trump on the ballot.

This means that unless the U.S. Supreme Court orders the removal of President Trump from the ballot before Jan. 5, he would remain on the Colorado ballot.

The question presented to the court is likely to be jurisdictional, as legal representatives for President Trump have argued in several state courts that state courts do not have the authority to adjudicate the question of insurrection and the qualification of a candidate for the presidential primary ballots.

The Fourteenth Amendment conferred equal rights and citizenship to all persons born and naturalized in the United States, extending these rights to former slaves after the Civil War. The Section 3 referred to in these lawsuits was written to prevent the scores of officers who left to join the Confederacy from returning to their post after the war.

“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.”

State courts have noted that the text does not define “insurrection” or “rebellion,” nor provide a method or procedure to confirm the disqualification of a candidate. Judges have also differed in their interpretation of the statute as one regarding “qualification” or “disqualification,” noting different standards.

This means that though many courts have declined to rule on the issue of “insurrection” or President Trump’s eligibility for office, they have cited wide-ranging reasons, including the fact that primary elections are party functions, which would make a Section 3 challenge possible during the general election.

If Supreme Court Accepts

If the high court accepts the case, it could put an end to the Section 3 challenges.

The legal theory that President Trump is disqualified from holding office under Section 3 of the Fourteenth Amendment was circulated by activists in 2021, immediately after the Capitol breach on Jan. 6.

However, the issue wasn’t taken to courts until well into President Trump’s campaign this year.

Secretaries of state across the nation have largely stepped back from the issue, making public statements that their office doesn’t have the authority to make such rulings, with a number of the secretaries adding that the courts, however, do have the authority to order them to remove President Trump from the ballot.

While challenges have been filed in about half the states across the country, only a few of these petitions are backed by national activists groups like Citizens for Ethics and Responsibility in Washington (CREW) which headed the Colorado case, and Free Speech for People, which spearheaded the Section 3 theory and have advanced similar cases in Minnesota, Michigan, and Oregon.

This is because states have different election laws, and not all states allow any voter to challenge the eligibility of a candidate in the courts. Colorado’s election law has been the best fit for a Section 3 challenge by far, giving anyone the standing to bring forth a challenge.

The remaining challenges had come from a longshot Republican candidate arguing he shouldn’t be made to compete with an ineligible candidate. Several of his petitions have been dismissed for lack of standing. John Anthony Castro from Texas has already appealed one of his many such petitions to the U.S. Supreme Court, but the high court rejected the case in October.

Yet, even in the states that have election codes that allow for these petitions to be filed and heard, most state courts have refrained from touching the “insurrection” issue at all, claiming no authority over the interpretation and application of Section 3 of the Fourteenth Amendment.

Courts continue to acknowledge that this is uncharted territory, with little precedent to guide them as to whether states, courts, Congress, or some other body should be adjudicating this issue.

But decisions individual states make are not binding on each other, and the several dismissals of such cases in other states did not prevent Colorado from trying the issue of whether Jan. 6 constituted an insurrection during a week-long trial and issuing a ruling.

Caucuses for Colorado?

The Republican primary in Colorado takes place March 5, 2024.

The Colorado Republican Party indicated it would consider switching from a ballot to a caucus system on Wednesday.

After GOP presidential candidate Vivek Ramaswamy pledged to withdraw from the Colorado primary ballot unless the decision barring President Trump was reversed, the Colorado Republican Party responded to his post on X:

“You won’t have to because we will withdraw from the primary as a party and convert to a pure caucus system if this is allowed to stand.”

With a caucus, the party could bypass the ballot-certification process at the secretary of state’s office and instead holding local meetings at the city, town, or county level to decide on the preferred party candidate.