By In a historic decision 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 Jan. 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 U.S. 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 for all states whether the Jan. 6 attack on the U.S. 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 U.S. 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 Colorado Supreme Court’s majority determined the trial judge was allowed to consider Congress’s investigation of the Jan. 6 attack on the U.S. 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 U.S. Supreme Court.
“We have full confidence that the Supreme Court will quickly rule in our favor and finally put an end to these un-American lawsuits,” he said in a statement.
In its decision, the Colorado Supreme Court said it was staying the decision until Jan. 4 and would keep that stay in place if an appeal is filed to the U.S. 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.
Derek Muller, a University of Notre Dame law professor who has studied the cases challenging Trump’s candidacy, called the Colorado decision unlike any other in history.
“No candidate’s ever been kept off the ballot for engaging in an insurrection, much less a presidential candidate, much less a former president,” he said. “So it’s just extraordinary.”
The decision puts intense pressure on the U.S. Supreme Court to act. A broad ruling by the high court would resolve the issue for all states.
“It feels like the kind of case the Supreme Court has to weigh in on,” Muller said.
In the short term, the Colorado ruling could influence courts and election officials in other states, he said. Other states have not taken such a step so far but may be willing to do so now that Colorado has acted, he said.
Three years after the end of the Civil War, the nation in 1868 adopted the 14th Amendment, granting citizenship to those born or naturalized 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.”
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 U.S. 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.
Vivek Ramaswamy, who is running against Trump for the Republican nomination, said in a statement to The Washington 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 maneuver 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,” Christie told a crowd on Tuesday at a New Hampshire town hall. “I think it’s bad for the 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.