Illegal blocking?

The results of Colorado’s presidential primary could depend just as much on an upcoming Supreme Court case as on the votes cast at the polls on March 5.

On Feb 8, the U.S. Supreme Court will hear an appeal from former President Donald Trump to remain on the 2024 ballot after Colorado’s Supreme Court removed him. Four justices ruled in the majority that Trump was involved in an insurrection on and leading up to the U.S. Capitol riot on Jan. 6, 2021, which bars him from holding state or federal office under the 14th Amendment. Three justices, including Chief Justice Brian Boatright, dissented. The Reconstruction-era amendment is far from clear, leaving it up to the nation’s highest court to sort out the mess. Its ruling could shake up even November’s general election ballot.

“All I want is fair,” Trump said at a campaign rally in Sioux Center, Iowa, last week. He said he does not trust Democratic judges but he has more confidence in the Supreme Court. “I fought to get three very, very good people in there. I just hope that they’re going to be fair because the other side plays the ref.”

Section 3 of the 14th Amendment of the U.S. Constitution disqualifies from state and federal office certain people who have sworn an oath to the United States and then engaged in an insurrection or “given aid or comfort to the enemies thereof.” It was adopted to keep leaders who joined the Confederacy from reentering office in the United States after the Civil War. Since it was ratified in 1868, it has been used to block eight public officials, most recently two men who were convicted of violent behavior at the U.S. Capitol on Jan. 6, 2021. Cuoy Griffin was removed from his post as a county commissioner in New Mexico following a lawsuit brought by Citizens for Responsibility and Ethics in Washington (CREW). This same committee has filed lawsuits in 18 states to block Trump from the ballot in 2024.

CREW filed a lawsuit last year on behalf of six Colorado residents. On Dec. 19, the state Supreme Court sided with CREW to boot Trump from the primary ballot. The divided ruling overturned an earlier decision from a state judge who determined that Trump did incite an insurrection in 2021 but left him on the ballot due to confusion over whether the 14th Amendment applies to presidents.

Section 3 specifically states that it applies to state office holders and electors for presidents and vice presidents, but it does not mention the president of the United States—something Trump’s legal team cited as evidence in his defense in the lower courts in November.

“The people who believe that the president is straightforwardly covered can point to what they call the absurdity argument: It would be absurd to keep former Confederates from being governors or members of Congress and then forget to close the door to let them become president,” Walter Olson told WORLD. Olson is a senior fellow in constitutional studies at the Cato Institute. “That couldn’t possibly be what was intended by the drafters. On the other hand, you can find some evidence for the Trump argument on this. I don’t think the courts will accept it, but it is an example of the complexities that hide in this whole topic.”

In their petition to the U.S. Supreme Court, Trump’s attorneys argued that the Colorado court “erred in how it described President Trump’s role in the events of January 6, 2021. It was not ‘insurrection.’” Olson said the Supreme Court has been reluctant to make direct statements about Trump’s actions in the past and will likely scan for an “off-ramp.”

“One of the toughest parts of a judge’s job is to take on something that is complicated and novel and is going to get a lot of people mad at them no matter how they roll,” Olson said. “But there are ways in which courts can avoid deciding the hardest issues. If there is a procedural way of resolving the case that allows them to resolve the case without getting to questions like, what do you make of Trump's conduct, it can just be very attractive.”

In Michigan, the state Supreme Court rejected an appeal from a group trying to block Trump from the ballot. The judges determined that the questions posed by Free Speech For People are for lower courts or voters themselves to decide. FSFP filed similar motions against Trump in January in Illinois and Massachusetts. The same group also tried to apply the 14th Amendment against five pro-Trump lawmakers, including U.S. Rep. Marjorie Taylor Greene of Georgia. But a judge ruled against them in that case, as well. In Nevada, federal District Judge Gloria Navarro rejected a case brought by someone who launched a presidential campaign so that he has standing to bring the case.

Another legal question for the Supreme Court is whether Section 3 is self-executing, which means that people enforce it rather than the legal system. Trump has argued that Congress impeached him but did not convict him. Therefore, his team claims, the courts need to stay out.

“The question of eligibility to serve as president of the United States is properly reserved for Congress, not the state courts, to consider and decide,” they wrote. “By considering the question of President Trump’s eligibility and barring him from the ballot, the Colorado Supreme Court arrogated [sic] Congress’ authority.”

Jack Fitzhenry, a legal fellow at the Heritage Foundation, said the Supreme Court could also address the question of responsibility between state courts, federal court, and the voters.

“I think there’s reason to be skeptical that state authorities or state courts ought to be the ones deciding this,” Fitzhenry said. “On a practical level, leaving it to each and every individual state to make up their own minds about what an insurrection is just leads to chaos. But that’s mostly a practical argument. There’s a legal argument that state courts and state election officials are not competent to answer the basic questions posed by the amendment.”

In that case, the Supreme Court could simply tell the Colorado Supreme Court to reverse its decision without giving any further guidance, Fitzhenry said.

In August, conservative legal scholars William Baude and Michael Stokes with the Federalist Society wrote in a law review paper that Section 3 ought to be read as self-executing, that it applies without any need for congressional action. They concluded that Trump could then be deemed ineligible for reelection.

“It’s frustrating to outsiders who don't spend every day in the legal system,” Olson said. He anticipates a long process that could disrupt the election year. “One court might rule that it was insurrection and the next court not. What if the courts in one state ruled that it was and the courts in another state didn’t? These are things that keep lawyers up with insomnia. There’s a widespread longing to get a single answer because we need to be able to plan. … But the courts may not be ready to give us a single answer.”

In Colorado, the primary ballots have already been printed with Trump’s name on them. If the Supreme Court upholds Colorado’s decision, any votes cast for Trump in the state will not count.

Oregon’s Supreme Court on Friday waitlisted a case to remove Trump from the primary and general election ballots until the Supreme Court rules on Trump’s eligibility. FSFP represents five voters in this one. The same organization filed identical motions with state election boards in Massachusetts and Illinois t. In Maine, Democratic Secretary of State Shenna Bellows bypassed the courts entirely and blocked Trump from the state’s ballot on Dec. 28. She also cited the 14th Amendment, but her motion is on hold pending a challenge in state court. 

In a court filing, Trump’s legal team pointed out that the former president is still the frontrunner for the GOP nomination this year. If Colorado’s ruling is allowed, it “will mark 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.”