The Colorado Supreme Court on Tuesday said Donald Trump is disqualified from holding the office of president under the U.S. Constitution.
The ruling is on hold for now pending potential U.S. Supreme Court review. Trump has vowed to “swiftly” appeal to the high court, which could reverse the ruling.
Because he’s disqualified, the state Supreme Court said in its 4-3 decision spanning 133 pages, it would be a “wrongful act” to list him as a candidate on the presidential primary ballot. Therefore, the court said, he can’t be on the ballot or have write-in votes for him counted.
The U.S. Supreme Court could have the final word, whether in this Colorado case or another one, as challenges have been raised in states across the country against Trump’s eligibility.
Section 3 of the 14th Amendment disqualifies from office those who take an oath to support the Constitution and then engage in insurrection. Colorado District Judge Sarah Wallace last month said Trump engaged in insurrection; however, she said Section 3 doesn’t apply to presidents, so he can be on the ballot. Both sides challenged the ruling at the state’s high court, arguing their positions to the state justices in a Dec. 6 hearing.
The state Supreme Court agreed with the Republican and unaffiliated voters who brought the case and disagreed with Trump, deciding, among other things, that Wallace was wrong to exclude presidents from Section 3 but that she wasn’t wrong in finding Trump engaged in insurrection.
The voters challenging Trump’s eligibility said in a court filing last month that Colorado Secretary of State Jena Griswold needs to have all appeals, including U.S. Supreme Court appeals, resolved by Jan. 5, when ballots must be certified for the state’s March 5 presidential primary election.
Mindful of that deadline, the Colorado Supreme Court on Tuesday said its ruling won’t go into effect until Jan. 4, pending potential U.S. Supreme Court review. However, if such review is sought before the pause expires, the court said, then the pause will remain in place and Trump will be included on the primary ballot until the state court hears from the U.S. Supreme Court.
All seven justices on the state Supreme Court are Democratic appointees.
Section 3 says: 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.
On the application of Section 3 to Trump, the Colorado Supreme Court said he wants the court to say it “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, the court wrote, “are inconsistent with the plain language and history of Section Three.” On the insurrection point, the court wrote that Trump’s “direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary.” The court added that the evidence “amply showed” that Trump “undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.” Among the dissenters’ complaints about the majority ruling is that Trump doesn’t have an insurrection-related conviction and that, in the absence of that, a Section 3 challenge isn’t properly brought under Colorado’s election code. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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