Former President Donald Trump on Wednesday asked the U.S. Supreme Court to overturn a ruling barring him from the Colorado ballot, setting up a high-stakes showdown over whether a constitutional provision prohibiting those who “engaged in insurrection” will end his political career.
Trump appealed a 4-3 ruling in December by the Colorado Supreme Court that marked the first time in history that Section 3 of the 14th Amendment was used to bar a presidential contender from the ballot. The court found that Trump’s role in the Jan. 6, 2021, attack on the U.S. Capitol disqualified him under the clause.
The provision has been used so sparingly in American history that the U.S. Supreme Court has never ruled on it.
Wednesday’s development came a day after Trump’s legal team filed an appeal against a ruling by Maine’s Democratic Secretary of State, Shenna Bellows, that Trump was ineligible to appear on that state’s ballot over his role in the Capitol attack. Both the Colorado Supreme Court and the Maine secretary of state’s rulings are on hold until the appeals play out.
Trump’s critics have filed dozens of lawsuits seeking to disqualify him in multiple states. He lost Colorado by 13 percentage points in 2020 and does not need to win the state to gain either the Republican presidential nomination or the presidency. But the Colorado ruling has the potential to prompt courts or secretaries of state to remove him from the ballot in other, must-win states.
None had succeeded until a slim majority of Colorado’s seven justices — all appointed by Democratic governors — ruled last month against Trump. Critics warned that it was an overreach and that the court could not simply declare that the Jan. 6 attack was an “insurrection” without a judicial process.
“The Colorado Supreme Court decision would unconstitutionally disenfranchise millions of voters in Colorado and likely be used as a template to disenfranchise tens of millions of voters nationwide,” Trump’s lawyers wrote in their appeal to the nation’s highest court, noting that Maine has already followed Colorado’s lead.
Trump’s new appeal to the U.S. Supreme Court also follows one from Colorado’s Republican Party. Legal observers expect the high court will take the case because it concerns unsettled constitutional issues that go to the heart of the way the country is governed.
All the parties to the case have urged the court to move quickly. Trump’s lawyers on Wednesday asked the court to overturn the ruling without even hearing oral arguments. The lawyers representing the Colorado plaintiffs have urged oral arguments but also seek a vastly accelerated schedule, calling for a resolution by next month. Colorado’s primary is March 5.
Sean Grimsley, an attorney for the plaintiffs seeking to disqualify Trump in Colorado, said late last month on a legal podcast called “Law, disrupted” that he hopes the nation’s highest court hurries once it accepts the case, as he expects it will.
“We have a primary coming up on Super Tuesday and we need to know the answer,” Grimsley said.
The Colorado high court upheld a finding by a district court judge that Jan. 6 was an “insurrection” incited by Trump. It agreed with the petitioners, six Republican and unaffiliated Colorado voters whose lawsuit was funded by a Washington-based liberal group, that Trump clearly violated the provision. Because of that, the court ruled he is disqualified just as plainly as if he failed to meet the Constitution’s minimum age requirement for the presidency of 35 years.
In doing so, the state high court reversed a ruling by the lower court judge that said it wasn’t clear that Section 3 was meant to apply to the president. That’s one of many issues the nation’s highest court would consider.
Additional ones include whether states such as Colorado can determine who is covered by Section 3, whether congressional action is needed to create a process to bar people from office, whether Jan. 6 met the legal definition of insurrection and whether Trump was simply engaging in First Amendment activity that day or is responsible for the violent attack, which was intended to halt certification of Democrat Joe Biden’s victory. Trump held a rally before the Capitol attack, telling his supporters that “if you don’t fight like hell, you’re not going to have a country anymore.”
Six of the U.S. Supreme Court’s nine justices were appointed by Republicans, and three by Trump himself.
The Colorado ruling cited a prior decision by Neil Gorsuch, one of Trump’s appointees to the high court, when he was a federal judge in Colorado. That ruling determined that the state had a legitimate interest in removing from the presidential ballot a naturalized U.S. citizen who was ineligible for the office because he was born in Guyana.
Section 3, however, has barely been used since the years after the Civil War, when it kept defeated Confederates from returning to their former government positions. The two-sentence clause says that anyone who swore an oath to “support” the Constitution and then engaged in insurrection cannot hold office unless a two-thirds vote of Congress allows it.
Legal scholars believe its only application in the 20th century was being cited by Congress in 1919 to block the seating of a socialist who opposed U.S. involvement in World War I and was elected to the House of Representatives.
But in 2022, a judge used it to remove a rural New Mexico county commissioner from office after he was convicted of a misdemeanor for entering the U.S. Capitol on Jan. 6. Liberal groups sued to block Republican Reps. Madison Cawthorn and Marjorie Taylor Greene from running for reelection because of their roles on that day. Cawthorn’s case became moot when he lost his primary in 2022, and a judge ruled to keep Greene on the ballot.
Some conservatives warn that, if Trump is removed, political groups will routinely use Section 3 against opponents in unexpected ways.
Biden’s administration has noted that the president has no role in the litigation.
The issue of whether Trump can be on the ballot is not the only matter related to the former president or Jan. 6 that has reached the high court. The justices last month declined a request from special counsel Jack Smith to swiftly take up and rule on Trump’s claims that he is immune from prosecution in a case charging him with plotting to overturn the presidential election, though the issue could be back before the court soon depending on the ruling of a Washington-based appeals court.
And the court has said that it intends to hear an appeal that could upend hundreds of charges stemming from the Capitol riot, including against Trump.
