Donald Trump’s position on Colorado’s ballot is secure ahead of Tuesday’s primary, the U.S. Supreme Court ruled Monday morning, overturning the Colorado Supreme Court’s earlier finding that the former president engaged in insurrection and was ineligible to run.
The federal justices’ 9-0 ruling puts to rest questions about whether states can enforce the insurrection clause of the 14th Amendment by disqualifying presidential candidates — though several justices disagreed with the opinion’s full rationale and scope.
“Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse,” the per curiam opinion says. It was not signed and represents the opinion of the court.
The decision effectively keeps the status quo for Colorado’s primary elections, which will be held alongside several other states’ primaries on Super Tuesday. Ballots for the Republican race, which features a matchup with former South Carolina Gov. Nikki Haley, were mailed to voters by Colorado clerks weeks ago, with Trump’s name listed as an option while the appeal was playing out.
This ruling, which followed Feb. 8 arguments by the parties’ lawyers to the justices, ensures those votes will be counted.
The justices cited concerns of widespread “disruption” to federal elections as shifting state-by-state rules and qualifications potentially disenfranchise millions of voters and affect electoral outcomes.
“Nothing in the Constitution requires that we endure such chaos — arriving at any time or different times, up to and perhaps beyond the Inauguration,” the opinion says.
While all signed onto the overall ruling, the court’s three liberal justices and Justice Amy Coney Barrett, a conservative, filed separate concurrences to argue the majority went too far with their opinion that Congress needed to enforce the clause.
“I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that,” Coney Barrett, a Trump appointee, wrote. “… It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
The separate concurrence by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson argued that by going into so much detail, “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”
On social media, Trump posted on Monday: “BIG WIN FOR AMERICA!!!”
“Voters can take a person out of a race very quickly, but a court shouldn’t be doing that, and the Supreme Court saw that very well,” he said during a news conference later in the morning.
Trump, who is decisively leading the race for the Republican nomination, praised the ruling as “going a long way toward bringing our country together” and for holding that it’s not up to the courts to disqualify candidates. He quickly pivoted to other criminal cases dogging his candidacy. He has been indicted in Georgia and in federal court on criminal charges related to trying to overturn the 2020 election results.
Trump has made broad claims of presidential immunity. The U.S. Supreme Court will hear arguments in late April on whether Trump can be prosecuted on those charges.
Monday’s ruling left room for the backers of the Colorado case, the liberal watchdog group Citizens for Responsibility and Ethics in Washington, or CREW, to claim some margin of victory.
The Supreme Court did not touch the question of whether Trump engaged in insurrection around the Jan. 6, 2021, riot at the U.S. Capitol by his supporters. The Colorado court’s 4-3 majority found that Trump did engage in insurrection. The president’s legal team had urged the nation’s high court to reverse that finding, too.
“While the (U.S.) Supreme Court allowed Donald Trump back on the ballot on technical legal grounds, this was in no way a win for Trump,” Noah Bookbinder, the president of CREW, said in a statement. “… The Supreme Court removed an enforcement mechanism, and in letting Trump back on the ballot, they failed to meet the moment. But it is now clear that Trump led the January 6th insurrection, and it will be up to the American people to ensure accountability.”
A “free pass” to run for office?
Colorado Secretary of State Jena Griswold said the ruling was narrowly tailored to claims of insurrection under the 14th Amendment and shouldn’t affect unrelated cases of candidate qualifications. One prior case that seems unaffected, for example, allowed the state to keep a would-be presidential candidate off the ballot because he was not a natural-born citizen. That case was ruled on by now-Justice Neal Gorsuch when he was on the 10th U.S. Circuit Court of Appeals in Denver.
But because the decision removes states’ ability to enforce the insurrection clause, Griswold worried the ruling “gives insurrectionists a free pass to run for office.”
Griswold, a Democrat, is an outspoken critic of Trump and has dedicated much of her tenure as secretary of state to fighting election denialism.
“States should be able to run their own elections (and) they should be trusted to disqualify oath-breaking insurrectionists,” Griswold said in an interview. “The court disagrees.”
She noted that states have wide latitude on how they run their elections, such as Colorado’s use of mail-in ballots and day-of registration. But on this issue, it’ll be up to Congress to act. Griswold criticized that branch of government as “non-functioning,” leaving it “up to the American people to save our democracy this November.”
Doug Spencer, a University of Colorado law professor who focuses on election law, didn’t think the ruling would lead to a broad shift in how elections are handled across the country.
The court was able to land on a narrow, legally grounded approach that netted a unanimous opinion — an achievement in itself, he said, given the divisive politics where Trump is concerned. He was less sympathetic to the court’s concerns about how disqualifying Trump would play out in practice.
Just this year, states have had different ballot listings of candidates, he said. New Hampshire left President Joe Biden off the Democratic primary ballot altogether after he didn’t file in response to the state’s party refusing to move its primary date. In Nevada, Republicans barred candidates from participating in both the primary and its caucus — in effect, making that state’s caucus about Trump and its primary election about Haley.
“Practically speaking, we already have a system where different states have different elections,” Spencer said.
Colorado voters filed Trump challenge
The Colorado case was filed by a group of unaffiliated and Republican Colorado voters, with support from CREW. They argued Trump was ineligible for office under the Civil War-era amendment to the Constitution. Section 3 of the 14th Amendment specifically bars people who engaged in insurrection or rebellion from office if they had previously taken an oath to support the Constitution.
Trump’s words riled up the mob that later stormed the U.S. Capitol on Jan. 6, 2021, the plaintiffs argued, and he took too little action to calm the riot — meeting the criteria for engaging in insurrection.
The Colorado Supreme Court agreed in its December ruling, finding that Trump was ineligible to appear on the primary ballot. The court put that ruling on hold while Trump appealed it.
The case was brought as part of a national effort helmed by CREW and other groups. CREW zeroed in on Colorado because state laws allow voters to challenge the eligibility of candidates and the Colorado secretary of state has the power to keep ineligible candidates off the ballot.
Trump’s legal team called the Jan. 6 riot “shameful, criminal (and) violent,” but they didn’t concede that it was an insurrection — or that Trump engaged in any insurrection.
Jonathan F. Mitchell, Trump’s lawyer before the U.S. Supreme Court, also cited a pending case in which Trump has argued he has presidential immunity and couldn’t be prosecuted for anything he did on Jan. 6, 2021, regardless.
“The Court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots,” Trump’s attorneys wrote in their brief ahead of Supreme Court arguments.
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