Donald Trump's re-election campaign has been challenged in at least 25 states. State courts have so far declined to bar Trump's candidacy — until now.
The Colorado Supreme Court shook up the legal and political world on December 19 by holding, in a per curiam 4-3 majority opinion, that Trump was prohibited from being on the ballot in Colorado due to his participation in events of January 6, 2021.
Below you can read about the origins of the legal argument, what practical effects the ruling may or may not have on the election, and what the U.S. Supreme Court will do about it.
The Origins of the Legal Argument
Last August, legal scholars Michael Luttig and Laurence Tribe made headlines by arguing that Donald Trump is constitutionally disqualified from running for president based on his actions leading up to the storming of the capitol.
Writing in The Atlantic, they argued that section 3 of the Fourteenth Amendment prohibits Trump from running for office. The Fourteenth Amendment was famously enacted after the Civil War to help newly freed slaves gain equality. Along with the much more famous (and legally impactful) Equal Protection and Due Process clauses, the Fourteenth Amendment prohibits elected officials who have participated in an "insurrection or rebellion" from running for office. You do not have to be a historian to see why it was included — the U.S. did not want former Confederate officials to gain key positions in the U.S. government.
The clause has never been used to disqualify a presidential candidate, however, and has rarely been invoked at all (it was used in a 2022 New Mexico case to disqualify a January 6 participant from holding the office of County Commissioner). This is yet another little-explored area of constitutional law that has been brought to the forefront during Trump's term in office and subsequent re-election efforts.
A Note on Practical Considerations
No legal case occurs in a vacuum, of course, and particularly on such an impactful case as this it makes sense to briefly touch on the practical effects of the ruling. Should Colorado's decision be upheld (which seems unlikely) the Colorado GOP has already said it would try to switch to a pure caucus primary and nominate Trump as the Republican candidate anyway. It is premature to explore that legal option in this blog, however.
It should also be noted that Colorado's decision only applies to the Colorado primary, a state in which Trump is expected to be hard-pressed to win in the general election regardless. He could still be elected even if, unexpectedly, the decision to prohibit his name on the ballot remains the law. Put simply, the decision is unlikely to make a significant impact on who becomes president in 2024, unless the position of the Colorado Supreme Court is adopted in other states and the Supreme Court declines to overturn those decisions. This seems unlikely in the extreme, particularly considering other state courts considering the question have declined to back Tribe and Luttig's arguments, even in traditionally "blue" states such as Minnesota.
SCOTUS Ran But Can No Longer Hide
Unsurprisingly, the U.S. Supreme Court wasn't eager to jump in to analyze this untested Civil War-Era Amendment section, declining to hear an appeal of the issue in October. That appeal, however, came because Republican primary candidate Juan Castro lost his challenge in a lower court. When declining certiorari keeps the status quo, it's easier for the U.S. Supreme Court to say no to a case. Like it or not, the country's highest court will almost certainly be forced to take a pivotal role in the 2024 presidential election, and not just because of this case. The Supreme Court must also soon decide whether a president is immune from criminal charges for all acts committed during his time in the presidency, a question that could have an overall larger impact on the 2024 election. Trump is facing 91 state and federal felony charges and could be sentenced to prison. If that does happen, the legal questions about presidential power, immunity, and pardoning power could have a significant and lasting impact.
Likely to Be Overturned, But ...
Predicting a Supreme Court decision is risky business. However, it would be surprising if the Supreme Court allowed Trump to remain off the ballot in Colorado. This is because of a particular argument cited by the dissent in the Colorado case, namely that Trump has not been convicted of any crime related to January 6. The U.S. Supreme Court could side with the dissenting opinions and hold that preventing a candidate from appearing on the ballot without first going through the court system deprives that citizen of their due process rights.
A long-shot argument is that several conservative justices have previously expressed reluctance to interfere with state election law. The majority in the Colorado Supreme Court's decision quoted Justice Neil Gorsuch directly, for example, writing that "As then-Judge Gorsuch recognized ... it is a state's legitimate interest in protecting the integrity and practical functioning of the political process' that 'permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office." Chief Justice John Roberts, too, has expressed reluctance for federal courts to interfere in state election law matters during his time on the bench.
Still, federal courts are certainly not prohibited from overturning a state supreme court when looking at questions of federal constitutional law, and the betting money is on the Supreme Court overturning the Colorado Supreme Court's decision.
Related Resources
- Disqualification from Public Office Under the 14th Amendment (FindLaw's U.S. Constitution)
- Rioting and Inciting to Riot (FindLaw's Learn About the Law)
- Fourteenth Amendment Due Process (FindLaw's Fourteenth Amendment)
