By Catherine Yang
On Jan. 3, former President Donald Trump appealed to the U.S. Supreme Court a ruling from the Colorado Supreme Court that found him ineligible to appear on the state’s primary ballot under Section 3 of the 14th Amendment because he engaged in and incited an “insurrection” on Jan. 6, 2021.
“In our system of ‘government of the people, by the people and for the people,’ Colorado’s ruling is not and cannot be correct,” the petition reads. “This Court should grant certiorari to consider this question of paramount importance, summarily reverse the Colorado Supreme Court’s ruling, and return the right to vote for their candidate of choice to the voters.”
It presents the high court with the question, “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?”
The appeal was expected, as attorneys for President Trump announced their intention to file a petition with the Supreme Court shortly after the Colorado disqualification in a move to remain on the ballot.
The Colorado Supreme Court had stayed its own order to remove President Trump—the front-runner for the GOP nomination—from the state primary ballot in its disqualification ruling until Jan. 4, anticipating an appeal at the U.S. Supreme Court.
The Colorado GOP, another intervenor in the case, had already filed a petition for immediate review in the U.S. Supreme Court on Dec. 27.
It meant President Trump would remain on the primary ballot unless the U.S. Supreme Court were to reject the petition by Jan. 4 or otherwise issue a ruling to strike President Trump from the ballot.
The Colorado secretary of state has a Jan. 5 deadline to certify the primary ballots, after which they are finalized and a challenge or ruling to President Trump’s eligibility to appear on the ballot would be moot.
Insurrection Theory
President Trump’s attorneys argued that the Colorado Supreme Court ruling marks “the first time in the history of the United States that the judiciary has prevented voters from casting ballots for the leading major-party presidential candidate.”
They argue that Congress is the appropriate venue to adjudicate Section 3 eligibility, but even if states could individually do so, the Colorado Supreme Court “misapplied the law.”
President Trump is arguing that the president isn’t an “officer” as described in Section 3, that President Trump “in no way ‘engaged’ in an ‘insurrection,’” and that the Colorado court proceedings “were premature and violated the Election Clause.”
The attorneys revealed that more than 60 lawsuits and administrative challenges to keep President Trump off the ballot were lodged over the past few months, all based on the theory that President Trump somehow engaged in insurrection and is now disqualified from holding office under Section 3 of the 14th Amendment.
In the Supreme Court petition, attorneys for President Trump rehash the Colorado trial, which had been largely based on the controversial House January 6 Select Committee report. Both a Colorado District Court and the Colorado Supreme Court ruled that the Jan. 6, 2021, Capitol breach was an insurrection based on evidence and testimony from the report, though attorneys noted that three justices dissented for reasons similar to the arguments they have put forth.
“First, the events of January 6, 2021, were not ‘insurrection’ as that term is used in Section 3,” the petition reads. The amendment was passed after the Civil War, and insurrection was understood to mean “the taking up of arms and waging war upon the United States,” they argued. More than 600,000 died in the war, and “focus on war-making” in the text was the “logical result.”
“By contrast, the United States has a long history of political protests that have turned violent. In the summer of 2020 alone, violent protestors targeted the federal courthouse in Portland, Oregon, for over 50 days, repeatedly assaulted federal officers and set fire to the courthouse, all in support of a purported political agenda opposed to the authority of the United States.”
Authority
But even before the issue of insurrection, the state courts had no authority to proceed with the case at all, the attorneys argued.
“Considering the Constitutional role for Congress in addressing presidential qualifications, it is little surprise that every court except Colorado that has addressed the political question doctrine when presented with the question of determining President Trump’s eligibility has held that question is nonjusticiable and reserved to Congress,” the petition reads.
“Indeed, every federal court that addressed this issue with regard to the eligibility of President Barack Obama, Senator John McCain, and Senator Ted Cruz held that the issue was for Congress and not the federal courts.”
Given that federal courts have issued similar dismissals in jurisdictions around the country, it would be “beyond absurd” that Section 3 was meant to be adjudicated by individual state courts but not federal courts, they argued, particularly because the 14th Amendment was meant to enlarge federal authority.
Disqualification Rulings
On Dec. 19, Colorado became the first state to ban President Trump from the primary ballot—the result of a narrow vote, with three of seven judges on the Colorado Supreme Court writing dissenting opinions in which they said they would have dismissed the case.
Similar challenges have been filed in several other states across the country, arguing that President Trump is ineligible for office under Section 3 of the 14th Amendment.
Ratified after the Civil War, the 14th Amendment extended citizenship and equal rights to former slaves and all persons born or naturalized in the United States. Section 3 of the amendment was meant to address the situation of U.S. officials who had left their posts to join the Confederacy, prohibiting those who had taken and broken an oath of office from taking office again, unless Congress granted them an exception with a two-thirds vote.
After Jan. 6, 2021, activists sent letters to election officials across the country urging them to ban President Trump from appearing on any ballot, but the idea picked up steam only in recent months as President Trump secured his clear lead as the GOP front-runner.
On Dec. 28, 2023, Maine became the second state to issue a ruling disqualifying President Trump as a candidate, this time coming directly from the secretary of state. Similar to the Colorado ruling, Secretary of State Shanna Bellows stayed her own order in anticipation of an appeal.
“I will suspend the effect of my decision until the Superior Court rules on any appeal or the time to appeal five days has expired,” she ordered.
