Donald Trump was wrongly removed from Colorado’s primary ballot last year, the US supreme court has ruled, clearing the way for Trump to appear on the ballot in all 50 states.
The court’s unanimous decision overturns a 4-3 ruling from the Colorado supreme court that said the former president could not run because he had engaged in insurrection during the January 6 attack on the US Capitol. The Colorado decision was a novel interpretation of section 3 of the 14th amendment, which bars insurrectionists from holding office.
“We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency,” the court wrote in an unsigned opinion. Congress, the court said, had to enact the procedures for disqualification under Section 3.
“State-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that the President … represent[s] all the voters in the Nation,” the court added.
Colorado’s presidential primary is on Tuesday, and Trump had been allowed to appear on the ballot while the case was pending. As of midnight on Monday, about 500,000 ballots had been cast in the Republican primary, Jena Griswold, Colorado’s Democratic secretary of state, said in an interview.
“I am disappointed in the decision. I believe Colorado or any state should have the right to bar oath-breaking insurrectionists from our ballots. And I’m concerned that the implications of the decision mean that federal, oath-breaking candidates have a free pass to run for office again,” she said.
Still, she said, she was glad the decision was issued because voters in Colorado and throughout the country deserved to know whether Trump was eligible to be on the ballot.
“I think the bigger picture is that Americans should not have been waiting, nor was I waiting, for the supreme court to save American democracy,” she said. “It will be up to American voters to save our democracy in November.”
Since the case was filed, Griswold, who did not file the case, said she has received more than 600 violent threats, an indication of the extreme potential for political violence surrounding questions of Trump’s candidacy.
Maine and a judge in Illinois had also excluded Trump from the ballot – decisions that are now likely to be quickly reversed.
All nine justices agreed with the central holding in the case: that the Colorado supreme court had wrongly barred Trump from appearing on the ballot. But agreement did not extend beyond that.
The majority opinion went on to say that the only way to enforce section 3 was by specifically tailored congressional legislation to determine which individuals should be disqualified for insurrection.But Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson all said that finding went beyond the scope of the case, with the liberal justices specifically saying the court was shielding insurrectionists from accountability.
“The Court continues on to resolve questions not before us. In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed,” the liberal justices wrote. ‘“These musings are as inadequately supported as they are gratuitous.”
The court’s conservative majority, the liberal justices said, had made it nearly impossible to hold insurrectionists accountable. The court “forecloses judicial enforcement” of the provision, they wrote, and was “ruling out enforcement under general federal statutes requiring the government to comply with the law”.
“By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office,” they wrote.
Barrett, a conservative also appointed by Trump, also did not fully embrace the majority’s opinion. “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,” she wrote.
But she went on to rebuke her liberal colleagues for amplifying disagreement on the court.
“In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” she wrote.
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Speaking at his Mar-a-Lago club in Florida, Trump praised the supreme court’s decision. “I want to start by thanking the supreme court for its unanimous decision today. It was a very important decision, very well crafted. I think it will go a long way toward bringing our country together, which our country needs,” he said.
None of the opinions addressed a central and politically charged issue in the case –whether Trump engaged in insurrection on January 6.
“While the supreme court allowed Donald Trump back on the ballot on technical legal grounds, this was in no way a win for Trump. The supreme court had the opportunity in this case to exonerate Trump, and they chose not to do so,” Noah Bookbinder, the president of Citizens for Ethics and Responsibility in Washington, the left-leaning group that backed the Colorado case, 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 6 insurrection, and it will be up to the American people to ensure accountability.”
Enacted after the civil war, section 3 of the 14th amendment says that any member of Congress or officer of the United States who engages in insurrection after taking an oath to the constitution is barred from holding office. It has never been used to bar a presidential candidate from office.
During oral argument in February, nearly all of the justices signaled skepticism of Colorado’s authority to remove Trump from the ballot. They worried about the chaos it would cause if states had the unilateral authority to determine a candidate had engaged in insurrection and worried it could result in a chaotic, partisan tit-for-tat.
“I would expect that a goodly number of states will say whoever the Democratic candidate is, you’re off the ballot, and others, for the Republican candidate, you’re off the ballot. It will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence,” the chief justice, John Roberts, said during oral argument.
The Colorado supreme court reached its conclusion after a Denver trial court judge held a five-day hearing and ruled that Trump had engaged in insurrection on January 6, but was not disqualified from the ballot because he was not an officer of the United States.
At the end of their opinion, the three liberal justices offered a full-throated defense of why section 3 was still needed.
“Section 3 serves an important, though rarely needed, role in our democracy. The American people have the power to vote for and elect candidates for national office, and that is a great and glorious thing. The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an ‘insurrection [and] rebellion’ to defend slavery. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles,” they wrote.
“Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.”
Rachel Leingang contributed reporting