Colorado high court rules Trump is disqualified from being president, cannot be on ballot

The court agreed with a lower court that Trump engaged in insurrection. The decision is on hold for now. Trump will be appealing to the U.S. Supreme Court.

The Colorado Supreme Court ruled 4-3 on Tuesday that Donald Trump “is disqualified” from being president under Section Three of the Fourteenth Amendment for having engaged in insurrection and cannot be on the 2024 Republican presidential primary ballot there as a result.

Trump’s spokesperson has already said Trump will be appealing the ruling to the U.S. Supreme Court, setting up an unprecedented, high-profile election dispute at the high court before the first 2024 presidential primary even takes place.

“[W]e conclude that the record fully supports the district court’s finding that President Trump engaged in insurrection within the meaning of Section Three,” the Colorado high court held in applying the post-Civil War amendment’s insurrection provision to Trump and his actions on and surrounding Jan. 6, 2021.

The unsigned opinion for the Colorado court’s four-member majority was issued less than two weeks after the justices heard arguments in the case. Despite the quick turnaround, the court’s opinion and three individual dissenting opinions totaled 213 pages.

“[B]ecause President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot,” the court held.

Given the effect of Colorado court’s decision and the first-of-its-kind nature of the ruling, U.S. Supreme Court review is likely. Likely acknowledging that fact, the Colorado court put its ruling on hold until Jan. 4, 2024, to allow for Supreme Court review. If such review is sought, the court also held that the stay will remain in place until the Supreme Court resolves the claim.

The decision adds yet another complication into the already complicated 2024 presidential election. Trump is leading the Republican field despite facing multiple state and federal criminal and civil trials, his behavior surrounding those proceedings has already led to multiple court orders seeking to limit his speech through gag orders, and his speech on the campaign trail is taking on explicitly authoritarian tones.

Tuesday’s ruling comes as the justices are already considering a request by Special Counsel Jack Smith to resolve Trump’s presidential immunity and other constitutional claims raised in response to the federal charges he is facing in D.C. related to Jan. 6. Trump’s response to that is due Wednesday.

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Examining the ruling

This is Section Three of the Fourteenth Amendment:

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.

Although the applicability of the provision to Trump and others involved in Jan. 6 had been discussed at points since then, an extensive law review article by Will Baude and Michael Stokes Paulsen that was made public in August shifted the conversation. In it, the pair detailed the history of the provision, applied it to Trump, and concluded, “If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution.”

That and other pre-existing work led to efforts — including the one in Colorado — to oppose Trump being allowed on the ballot in his attempt to run for president in 2024. The state district court found that Trump engaged in insurrection but that the presidency is not an “office” and the president not an “officer” under Section Three and so he could not be kept off the ballot. The Colorado Supreme Court heard the appeal on Dec. 6, and ruled on Tuesday.

The court’s extensive ruling ultimately boiled down to four questions:

• Could Colorado resolve a Section Three disqualification claim?

• Did Colorado authorize a Section Three disqualification claim?

• Is the president covered by Section Three?

• Is Trump disqualified under Section Three?

Only if all four of those questions are answered in the affirmative would the challenge to Trump being on the ballot succeed.

The majority — Justices Monica Márquez, William Hood III, Richard Gabriel, and Melissa Hart — on Tuesday held that the answers are yes, yes, yes, and yes.

The dissenting justices differed slightly on their reasons for rejecting the challenge, with one — Justice Carlos Samour — answering no to the first question and needing to go no further and the other two — Chief Justice Brian Boatright and Justice Maria Berkenkotter — answering no to the second question.

The first question is a matter of whether states can resolve any qualification claim and then whether they can resolve Section Three claims specifically. This is the big-picture, “constitutional questions” area. As to the first, the court held that “several courts have expressly upheld states’ ability to exclude constitutionally ineligible candidates from their presidential ballots,” citing age-based and citizenship-based challenges. Relatedly, the court also rejected a First Amendment associational claim brought by the Colorado Republican State Central Committee.

As to the Section Three issue specifically, the court — going into great detail — concluded that Section Three is “self-executing,” that is, has effect without any further congressional action. In doing so, the court looked at the Thirteenth, Fourteenth, and Fifteenth amendments, given the paucity of opinions interpreting Section Three itself.

“[W]e agree with the Electors [challenging Trump’s inclusion on the ballot] that interpreting any of the Reconstruction Amendments, given their identical structure, as not self-executing would lead to absurd results,” the court held “If these Amendments required legislation to make them operative, then Congress could nullify them by simply not passing enacting legislation.”

Under Section Five of the Fourteenth Amendment, Congress could “establish a process” for determining who is subject to Section Three’s disqualification, the Colorado court acknowledged. But, it continued, “the fact that Congress may establish such a process does not mean that disqualification pursuant to Section Three can be determined only through a process established by Congress.”

The court also rejected Trump’s argument that that case presented a “political question” that is “nonjusticiable.”

The second question asks what Colorado law has authorized and whether that includes a Section Three claim. Here, the dissenters argued that the state’s truncated procedure for election claims provided insufficient due process for such a claim.

The majority, however, noted that while “Colorado’s expedited statutory procedure for litigating election disputes may be unfamiliar nationally,” state courts in Colorado “are accustomed to [such] litigation.”

Going further, the court determined that “certifying an unqualified candidate to the presidential primary ballot constitutes a ‘wrongful act’” that is subject to challenge. Finally, the court held, “We perceive no logical distinction between a disqualification from office [under Section Three] and a qualification to assume office, at least for the purposes of the … claim here.”

The third question addresses whether the presidency is an “office … under the United States” and the president is an “officer of the United States.”

Really.

The court agreed that this argument is ridiculous.

As the court noted, “The Constitution refers to the Presidency as an ‘Office’ twenty-five times.” It continued:

Referencing the Impeachment Clause, and the disqualification from “office … under the United States” detailed as a result therein, the court highlighted that applying the argument made here to that clause would be “nonsensical.”

The fourth question is, essentially, whether Jan. 6 constituted an insurrection and whether Trump “engaged in” that insurrection.

The state district court made extensive findings on these issues, and the Colorado Supreme Court strongly agreed on both fronts.

After a lengthy review of Trump’s actions, specifically, the court held, “We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection.”

Finally, and in conjunction with this conclusion, the court held that Trump’s actions on Jan. 6 were not protected by the First Amendment.

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