The Supreme Court has ruled that Donald Trump can be on the presidential primary ballot in Colorado, overruling a state court ruling that said otherwise and seemingly cementing Trump’s place on the ballot nationwide despite his engagement in the Jan. 6 insurrection.
Congress, rather than the states, is responsible for enforcing the constitutional provision at issue against federal officeholders and candidates, the court said Monday in a “per curiam” opinion, meaning an unsigned ruling for the court. The court was unanimous in reversing the Colorado ruling against Trump, but there was disagreement about how far the court went. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson wrote a concurring opinion saying the majority decided more than it had to, ruling on “novel constitutional questions to insulate this Court” and Trump “from future controversy.” Justice Amy Coney Barrett also wrote a short concurrence saying the majority decided more than it had to, but she didn’t join the Democratic appointees’ lengthier concurrence that was more critical of the majority.
“Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so,” the three Democratic appointees wrote, referring to the section of the 14th Amendment that bars from office insurrectionists who had sworn to support the Constitution.
“The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment,” wrote the three justices, who added: “In doing so, the majority shuts the door on other potential means of federal enforcement.”
The decision comes a day ahead of Super Tuesday, when several states are holding their primary contests, including Colorado.
Briefs from outside groups, including historians, argued that Trump is disqualified from office under the 14th Amendment. But the Feb. 8 oral argument showed the justices’ discomfort with keeping the leading GOP presidential candidate off the ballot.
In December, the Colorado Supreme Court ruled that Trump is disqualified, citing the insurrectionist ban, but placed its ruling on hold pending Trump’s appeal to the U.S. Supreme Court. Challenges to Trump’s eligibility have been pending across the country, creating a need for the U.S. Supreme Court justices to settle the issue nationwide. Illinois recently joined Colorado and Maine in deeming Trump ineligible, and those other states’ decisions have also been on hold pending the former president’s appeal. Monday’s ruling in Trump v. Anderson follows the justices’ decision last week to take up Trump’s immunity bid in the federal election interference case, setting argument for the week of April 22. Even if the high court rejects Trump’s far-fetched immunity claim, the decision to review the matter instead of sending it back for trial further delays the proceeding, and possibly helps Trump eliminate the case completely if he wins the election and gains the power to quash it. The immunity appeal is on a less-expedited schedule than this Colorado eligibility case, which the justices set for argument a month out from granting review. 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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