JURIST Deputy Editorial Director William Hibbitts and US Bureau Chief JP Leskovich from the University of Pittsburgh School of Law contributed to this report.
The Colorado Supreme Court held on Tuesday that former US President Donald Trump is disqualified from holding the office of the presidency and held that he can no longer appear on the state’s Republican primary ballot in the upcoming 2024 presidential race. The court’s decision overturned a previous district court ruling which found that, although Trump “engaged in insurrection,” he was not disqualified from holding office under Section 3 of the US Constitution’s Fourteenth Amendment. Trump has already indicated that he will appeal the decision to the US Supreme Court—the final court of appeal in the country.
The court’s Tuesday decision turned on the application of Section 3, which prohibits anyone from “hold[ing] any office, civil or military, under the United States, or under any State, who, having previously taken an oath … engaged in insurrection or rebellion.” Because the court found that Trump cannot hold office under Section 3, it barred Trump from appearing on the state’s 2024 Republican primary ballot. The court reasoned that, under the state’s Election Code, it would be a breach of duty for the Colorado Secretary of State to place Trump on the ballot because he is no longer a “qualified candidate.”
Several Republican and non-affiliated electors originally challenged Trump’s ability to appear on the ballot in September. Two months later, a Colorado district court found that, although Trump did engage in insurrection on January 6, 2021, he was not disqualified from holding office under Section 3. The district court took issue with the application of certain language within Section 3 to Trump’s situation.
Tuesday’s decision from the Colorado Supreme Court ultimately found that Section 3 is properly applied to Trump’s behavior on January 6. In doing so, the court said it aimed to “prevent the evasion of the provision’s legitimate operation and to effectuate the drafters’ intent.”
In coming to its decision, the court found:
Section Three applies to President Trump only if (1) the Presidency is an “office, civil or military, under the United States”; (2) the President is an “officer of the United States”; and (3) the presidential oath set forth in Article II constitutes an oath “to support the Constitution of the United States.”
Addressing each of those prongs in turn, the court first found that the presidency is an office under the US. The court primarily relied upon the “phrase’s normal and ordinary usage” in coming to this conclusion. At the district court level, the judge took issue with the fact that the presidency is not explicitly mentioned in Section 3 and that electors had to rely on the catch-all clause of “office … under the United States.” The Supreme Court dismissed these concerns, however, writing, “It seems most likely that the Presidency is not specifically included because it is so evidently an ‘office.'” The court then analyzed the construction of the US Constitution and its historical drafts to find support that there was never any “demonstrate[d] … intent to exclude the Presidency from the covered offices.”
The court concluded that the president should be considered an “office of the United States” under Section 3 because the clear plain meaning of the phrase indicates as much. The court even pointed to the fact that Trump conceded in his appeal that “the President is an officer.” Though Trump urged the court to understand the phrase as a term of art, the court refused to do so “in the absence of a clear intent to employ a technical definition for a common word.”
Finally, the court addressed the district court’s contention that the presidential oath is too narrow to qualify under Section 3’s language, disagreeing with the district court and Trump. The Supreme Court found, “The language of the presidential oath—a commitment to ‘preserve, protect, and defend the Constitution’—is consistent with the plain meaning of the word ‘support.'” With that, the court found that the presidency falls under Section 3.
When it came to the disqualification aspect of Section 3, the Supreme Court upheld the district court’s finding that Trump engaged in insurrection during the Capitol riot on January 6, 2021. For the purposes of the section, the court stated that insurrection encompasses “a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.” Based on the fact finding conducted at the district court level, the Supreme Court found that “substantial evidence in the record supported each of these elements and that … the events of January 6 constituted an insurrection.” Furthermore, the court concluded that Trump engaged in this insurrection through taking the overt and voluntary act to “fan the flames of his supporters’ ire, which he had ignited.”
The court also rejected Trump’s contention that his speech on January 6—which the court referred to in its earlier findings—was protected by the First Amendment.
Prior to the court’s decision, both Trump and the Colorado Republican Party disputed the state’s ability to prevent Trump’s name from appearing on the ballot. Trump claimed that, even if the court found he was disqualified from holding office, that did not disqualify him running for that same office. The court disagreed, however, finding that the two are functionally and effectively the same. The Colorado Republican Party argued that preventing Trump from appearing on the state’s ballot violated its First Amendment rights to select candidates under the US Constitution. Again, the court disagreed. The court found that, while political parties do have the right to choose which candidates to put forward, every candidate appearing on the ballot must meet constitutional qualifications for that office.
When the Republican and non-affiliated electors challenged Trump’s ability to appear on the 2024 primary ballot in Colorado, they did so under two state election provisions—C.R.S § 1-4-1204 and 1-1-113. The first provision allows for “challenge[s] to the listing of any candidate on the presidential primary election ballot.” The second allows for expedited reviews of such matters, which explains why the challenge was filed in September and fully litigated in the district court by November. The Supreme Court said on Tuesday that this expedited review process is meant to bolster the state’s interest in “protecting the integrity of the election process and avoiding voter confusion.”
The court’s Tuesday decision was not without dissent, however. Three justices of the court’s seven-justice bench dissented from the majority’s opinion.
Chief Justice Brian Boatright asserted that the expedited review and disqualification process of 1-1-113 was improperly applied to this case. While he found that some federal law claims can be litigated under 1-1-113, he found that Section 3 was not one of them. “Unlike qualifications such as age and place of birth, an application of Section 3 requires courts to define complex terms, determine legislative intent … and make factual findings foreign to our election code,” the justice wrote.
Justice Carlos Samour similarly asserted that Colorado’s Election Code does not enable the enforcement of Section 3, which may be more properly litigated under federal law. Samour argued that the issues presented by the case would be better handled at the federal level, as Congress intended. He also echoed Boatright’s concerns about the complexity of the case and the speed with which the issues were handled in Colorado’s judicial system, calling it a “procedural Frankenstein.”
Justice Maria Berkenkotter also dissented, echoing Boatright and Samour. She asserted that the Colorado General Assembly never intended for the judiciary to litigate Section 3 claims through the use of 1-1-113 and 1-4-1204. Berkenkotter believed that the court’s application of Colorado’s Election Code in this case was far too broad.
Trump campaign spokesperson Steven Cheung responded to the ruling late on Tuesday:
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. We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these unAmerican lawsuits.
The Colorado Supreme Court stayed Tuesday’s ruling until January 4, 2024, to allow time for an appeal to the US Supreme Court. After that January 4, 2024 deadline, the Colorado Secretary of State will finalize the state’s primary ballot—with or without Trump’s name on it.