Colorado Supreme Court bans Trump from the stateâs ballot under Constitutionâs insurrection clause
A divided Colorado Supreme Court on Tuesday declared former President Donald Trump ineligible for the White House under the U.S. Constitutionâs insurrection clause and removed him from the stateâs presidential primary ballot, setting up a likely showdown in the nationâs highest court to decide whether the front-runner for the GOP nomination can remain in the race.
The decision from a court whose justices were all appointed by Democratic governors marks the first time in history that has been used to disqualify a presidential candidate.
âA majority of the court holds that Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment,â the court wrote in its 4-3 decision.
Coloradoâs highest court overturned a ruling from a district court judge who found that Trump incited an insurrection for his role in the Jan. 6, 2021, attack on the Capitol, but said he could not be barred from the ballot because it was unclear that the provision was intended to cover the presidency.
The court stayed its decision until Jan. 4, or until the U.S. Supreme Court rules on the case.
âWe do not reach these conclusions lightly,â wrote the courtâs majority. âWe 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.â
Trumpâs attorneys had promised to appeal any disqualification immediately to the nation's highest court, which has the final say about constitutional matters.
"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,â Trump campaign spokesman Steven Cheung said in a statement Tuesday night.
Trump lost Colorado by 13 percentage points in 2020 and doesnât need the state to win next yearâs presidential election. But the danger for the former president is that more courts and election officials will follow Coloradoâs lead and exclude Trump from must-win states.
Colorado officials say the issue must be settled by Jan. 5, the deadline for the state to print its presidential primary ballots.
Dozens of lawsuits have been filed nationally to disqualify Trump under Section 3, which was designed to keep former Confederates from returning to government after the Civil War. It bars from office anyone who swore an oath to âsupportâ the Constitution and then âengaged in insurrection or rebellionâ against it, and has been used only a handful of times since the decade after the Civil War.
The Colorado case is the first where the plaintiffs succeeded. After a weeklong hearing in November, District Judge Sarah B. Wallace found that Trump indeed had âengaged in insurrectionâ by inciting the Jan. 6 attack on the Capitol, and her ruling that kept him on the ballot was a fairly technical one.
Trumpâs attorneys convinced Wallace that, because the language in Section 3 refers to âofficers of the United Statesâ who take an oath to âsupportâ the Constitution, it must not apply to the president, who is not included as an âofficer of the United Statesâ elsewhere in the document and whose oath is to âpreserve, protect and defendâ the Constitution.
The provision also says offices covered include senator, representative, electors of the president and vice president, and all others âunder the United States,â but doesnât name the presidency.
The stateâs highest court didnât agree, siding with attorneys for six Colorado Republican and unaffiliated voters who argued that it was nonsensical to imagine the framers of the amendment, fearful of former Confederates returning to power, would bar them from low-level offices but not the highest one in the land.
âYouâd be saying a rebel who took up arms against the government couldnât be a county sheriff, but could be the president,â attorney Jason Murray said in in early December.
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Trumpâs attorneys argued unsuccessfully that the writers of the amendment expected the Electoral College to prevent former insurrectionists from becoming president.
They also had urged the Colorado high court to reverse Wallaceâs ruling that Trump incited the Jan. 6 attack. His lawyers argued the then-president had simply been using his free speech rights and hadnât called for violence. Trump attorney Scott Gessler also argued the attack was more of a âriotâ than an insurrection.
That met skepticism from several of the justices.
âWhy isnât it enough that a violent mob breached the Capitol when Congress was performing a core constitutional function?â Justice William W. Hood III said during the Dec. 6 arguments. âIn some ways, that seems like a poster child for insurrection.â
In the ruling issued Tuesday, the court's majority dismissed the arguments that Trump wasnât responsible for his supportersâ violent attack, which was intended to halt Congress' certification of the presidential vote: âPresident Trump then gave a speech in which he literally exhorted his supporters to fight at the Capitol,â they wrote.
Colorado Supreme Court Justices Richard L. Gabriel, Melissa Hart, William W. Hood III and Monica MĂĄrquez ruled for the petitioners. Chief Justice Brian D. Boatright dissented, arguing the constitutional questions were too complex to be solved in a state hearing. Justices Maria E. Berkenkotter and Carlos Samour also dissented.
âOur government cannot deprive someone of the right to hold public office without due process of law,â Samour wrote in his dissent. âEven if we are convinced that a candidate committed horrible acts in the past â dare I say, engaged in insurrection â there must be procedural due process before we can declare that individual disqualified from holding public office.â
The Colorado ruling stands in contrast with the , which last month decided that the state party can put anyone it wants on its primary ballot. It dismissed a Section 3 lawsuit but said the plaintiffs could try again during the general election.
In another 14th Amendment case, ruled that Congress, not the judiciary, should decide whether Trump can stay on the ballot. That ruling is .
The liberal group behind those cases, Free Speech For People, also filed another lawsuit in Oregon seeking to bounce Trump from the ballot there. The Colorado case was filed by another liberal group, Citizens for Responsibility and Ethics in Washington.
Both groups are financed by liberal donors who also support President Joe Biden. Trump has blamed the president for the lawsuits against him, even though Biden has no role in them, saying his rival is âdefacing the constitutionâ to try to end his campaign.