The Colorado Supreme Court took the unprecedented step of ordering Donald Trump removed from the 2024 presidential ballot on Tuesday, finding him constitutionally ineligible to hold future office.
Trump’s campaign said it would appeal the decision to the U.S. Supreme Court.
The Dec. 19, unsigned opinion was the first by any state supreme court to address head-on the substantive arguments of Trump’s — or any presidential candidate’s — eligibility, given the allegations that Trump engaged in an insurrection on Jan. 6, 2021.
“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 opinion from the four-justice majority read.
The majority noted it had “little difficulty” concluding there was sufficient evidence to deem the deadly mob attack of Jan. 6 an insurrection, and that Trump’s own actions to stop the certification of President Joe Biden’s victory were directly linked to the insurrection.
Three justices dissented: Chief Justice Brian D. Boatright and Justices Carlos A. Samour Jr. and Maria E. Berkenkotter. Each took issue with the procedures of the eligibility challenge and did not dispute the substantive findings about whether Trump’s actions amounted to insurrectionist, disqualifying conduct.
The court put its ruling on hold to accommodate a likely appeal to the U.S. Supreme Court.
The first decision on the merits
The challenge to Trump’s eligibility has rocketed through the courts since its filing in September, with a looming deadline of Jan. 5, 2024 for Secretary of State Jena Griswold to certify the candidates for next year’s primary. The petitioners who brought the case — four Republican and two unaffiliated voters — argued Trump cannot hold the presidency again under Section 3 of the 14th Amendment, ratified in the wake of the Civil War.
Section 3 disqualifies senators, U.S. representatives and “an officer of the United States,” among others, from holding future federal or state office if they took an oath to support the Constitution and subsequently “engaged in insurrection.”
Attorney Scott Gessler argues before the Colorado Supreme Court on Wednesday, Dec. 6, 2023, in Denver. The oral arguments before the court were held after both sides appealed a ruling by a Denver district judge on whether to allow former President Donald Trump to be included on the state’s general election ballot.David Zalubowski – pool, ASSOCIATED PRESS
Other courts have scratched the surface of the question, ultimately dismissing the challenges without addressing the merits. However, Denver District Court Judge Sarah B. Wallace issued a detailed order, explaining that Trump engaged in an insurrection by inciting his supporters to attack the U.S. Capitol on Jan. 6, and that Colorado courts have authority to adjudicate presidential qualifications.
Ultimately, she declined to order Trump disqualified from the ballot. After a five-day hearing featuring extensive historical evidence, Wallace was unconvinced the drafters of Section 3 intended that it apply to the presidency.
Both the petitioners and Trump appealed to the Colorado Supreme Court. Griswold, the Democratic secretary of state, did not formally take a position on Trump’s continued eligibility.
“If we say that this conduct by this person is not enough under the Constitution, what we do is empower Trump and others to use more political violence to attack our democracy,” warned Eric Olson, an attorney for the petitioners, during oral arguments earlier this month.
Colorado Supreme Court Justice Carlos Samour, Jr., left, asks a question during oral arguments before the court on Wednesday, Dec. 6, 2023, in Denver. Looking on are justices Richard L. Gabriel, second from left, Monica M. Marquez, third from left, and Chief Justice Brian D. Boatright. Colorado Supreme Court justices have sharply questioned whether they could exclude former President Donald Trump from the state’s 2024 ballot.David Zalubowski – pool, ASSOCIATED PRESS
Majority says courts can act to bar insurrectionists
The court’s majority opinion waved aside Trump’s claim that he could not adequately defend against the petitioners’ allegations given the expedited nature of election proceedings. It also differentiated Colorado’s laws from those of other states, agreeing the constitutional challenge to Trump’s eligibility — as with questions about candidates’ age or citizenship — fit squarely under the state’s election protocols.
Crucially, the majority concluded Congress did not need to pass legislation to enforce the disqualification provision, just as it did not need to act to enforce the 13th Amendment’s prohibition against slavery.
“The result of such inaction would mean that slavery remains legal; Black citizens would be counted as less than full citizens for reapportionment; non-white male voters could be disenfranchised; and any individual who engaged in insurrection against the government would nonetheless be able to serve in government,” the majority wrote.
In finding Wallace mistakenly concluded the presidency was not covered under Section 3’s disqualification provision, the majority believed the presidency is “so evidently an ‘office’,” both in the plain meaning of the words and as the 19th century drafters understood it.
Colorado Supreme Court Justice Monica M. Marquez questions an attorney as Chief Justice Brian D. Boatright, back, looks on during a hearing before the court on Wednesday, Dec. 6, 2023, in Denver. The oral arguments before the court were held after both sides appealed a ruling by a Denver district judge on whether to allow former President Donald Trump to be included on the state’s general election ballot.David Zalubowski – staff, ASSOCIATED PRESS
“President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three,” the majority concluded.
Finally, the majority decided the evidence showed Trump “fully intended to” aid the effort to overturn the election certification and prevent the peaceful transfer of power. Under existing U.S. Supreme Court precedent, Trump’s calls to action to his supporters were also not protected by the First Amendment.
In dissent
All three dissenting opinions cast doubt on the propriety of using Colorado’s election procedures to answer the weighty question of a former president’s disqualification due to insurrection.
Boatright criticized the decision to litigate Trump’s eligibility under the “breakneck pace” of Colorado’s expedited elections protocols, and argued the district court proceedings did not even comply with the strict timelines.
Samour went further, calling the hearing in front of Wallace a “procedural Frankenstein.” He believed only Congress could authorize the enforcement of Section 3’s disqualification provision. Samour contended Trump was not afforded due process and, like Boatright, argued the fast-tracked case inherently disadvantaged Trump.
“There was no fair trial, either,” he wrote. “I have been involved in the justice system for thirty-three years now, and what took place here doesn’t resemble anything I’ve seen in a courtroom.”
Attorney Eric Olson argues before the Colorado Supreme Court on Wednesday, Dec. 6, 2023, in Denver. The oral arguments before the court were held after both sides appealed a ruling by a Denver district judge on whether to allow former President Donald Trump to be included on the state’s general election ballot.David Zalubowski – staff, ASSOCIATED PRESS
In contrast, Berkenkotter did believe Trump’s eligibility under Section 3 could have proceeded in state court. However, she did not feel the existing protocols fit the occasion.
“Three days to appeal a district court’s order regarding a challenge to a candidate’s age? Sure,” she wrote. “But a challenge to whether a former President engaged in insurrection by inciting a mob to breach the Capitol and prevent the peaceful transfer of power? I am not convinced this is what the General Assembly had in mind.”
Steven Cheung, a spokesperson for Trump’s campaign, said he had confidence the U.S. Supreme Court would rule in the former president’s favor.
“The Colorado Supreme Court issued a completely flawed decision tonight and we will swiftly file an appeal,” he said.
The case is Anderson et al. v. Griswold.
