Trump’s Path From Colorado to the Supreme Court

As if the Supreme Court wasn’t already poised in the coming months to render a set of controversial and politically polarizing decisions related to the fate of American democracy, now it will almost certainly be asked to settle – once and for all – whether Donald Trump’s involvement with the Jan. 6 insurrection at the Capitol disqualifies him from being president.

To stitch together a new national narrative about a former president who went to great lengths to obstruct the certification of the 2020 presidential election in an attempt to remain in power and whether those efforts bar him from holding office again is a heavy burden for any court – let alone one whose legitimacy already hangs in the balance.

Yet that’s exactly what the 133-page decision handed down on Tuesday by a split Colorado Supreme Court is likely to ask of the justices who sit on the country’s highest court – three of whom were appointed by Trump himself.

In a stunning 4-3 ruling that is likely to rattle both the presidential race and the legal system, the Colorado Supreme Court banned Trump from appearing on the state’s primary ballot, saying an obscure, Civil War-era provision in the 14th Amendment of the Constitution barred anyone deemed an “insurrectionist” from serving.

Trump and his defense team plan to appeal the ruling. And with similar challenges working their way through the legal systems of well over a dozen other states, the Supreme Court will all but certainly be tasked with settling the decision and in doing so either clear a path to the White House for Trump or close its gates to him.

“One thing that might come out of this – and it is a relatively good thing, regardless of which outcome you want – is that it might jump-start the process for getting this finally decided by the United States Supreme Court,” says David Becker, executive director of The Center for Election Innovation & Research, a nonpartisan organization that works with both sides of the aisle to build trust in elections.

Known as the “insurrection clause,” the provision was originally meant to prevent Confederate soldiers from getting into office and undermining Reconstruction. It states that no one can hold office who has previously taken an oath to support the Constitution but then engaged in an insurrection or provided help to enemies of the United States.

The Colorado Supreme Court ruling marks the first time the insurrection clause has been used to disqualify a presidential candidate.

“We do not reach these conclusions lightly,” the court majority wrote. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

The recent developments come after a lower court judge in Denver said in November that Trump had indeed engaged in insurrection but that he could stay on the ballot because the insurrection clause applies to “officers of the United States” and does not apply to those running for president.

The state Supreme Court, however, said that an interpretation of the “plain language” of the 14th Amendment indicates the president is an “officer” under the Constitution, and that Section 3 – the clause in question – indeed applies to the once and possibly future president. But it will be for the high court in Washington to accept or reject that interpretation.

“It’s crucial for all Americans that the issue of Donald Trump’s eligibility be resolved as soon as possible,” Becker says. “This is particularly true for the Republican Party, who needs to know if they have a qualified nominee, for election officials to know whether or not to put his name on the ballot and finally for all the voters who need to know who their choices are and who they can vote for. I hope this is an opportunity for the court to consider the substantive merits of this case regardless of where they come out and render a clear decision very soon.”

The news set off a firehose of reaction, with President Joe Biden, who has been criticized recently for not attacking the twice-impeached GOP primary front-runner more for his mounting legal challenges, commenting on Trump’s involvement with the insurrection.

“It’s self-evident,” Biden told reporters aboard Air Force One on Wednesday. “You saw it all. Now whether the 14th Amendment applies, I’ll let the court make that decision. But he certainly supported an insurrection. No question about it. Zero.”

“And he seems to be doubling down on just about everything,” he added.

Colorado Secretary of State Jena Griswold eagerly touted the state’s Supreme Court decision on Wednesday.

“This is definitely a historic case. In fact, it’s historic because usually we don’t have presidents trying to steal elections and then run for office again,” she said. “They determined that he engaged in insurrection and is disqualified from the ballot unless overturned by the U.S. Supreme Court.”

Griswold underscored that if Trump appeals the decision, which by all indications he will, then the court order resets and it’s assumed he will be on the ballot barring a decisive action from the U.S. Supreme Court, which she pledged to follow.

“Big picture,” she said, “I think we have to wait and see how this plays out.”

Meanwhile, Dave Williams, chairman of the Colorado Republican Party, said that instead of a primary the party might hold a caucus – the meeting structure of which could technically bypass the prohibition against Trump appearing on a ballot. The state held caucuses not so long ago, and election experts say it would be a legal workaround – even if logistically tricky to manage so late in the planning process.

Notably, the Colorado Supreme Court specified that their decision be paused until Jan. 4 – one day before the deadline for Griswold to certify the candidates for the state’s March 5 primary.

Others, even those intimately familiar with the high court, its inner working and the justices’ ideologies seemed astounded by the predicament – most notably by how a conservative court, of which three seated justices were appointed by Trump himself and which tends to embrace the same originalist philosophy for reading the Constitution that the Colorado Supreme Court justices relied upon, might choose to navigate the question before them.

“I don’t really know what they’re going to do,” says Saikrishna Prakash, professor at the University of Virginia School of Law, a senior fellow at the Miller Center and a former clerk to Justice Clarence Thomas. “I think it’s a tricky position because any way they rule they will be deeply criticized.”

“It’s not legally tricky, it’s practically tricky,” he says. “There’s no way to decide this case where everyone says, ‘I guess that’s right,’ because some people hate President Trump and some people love him. They view anything through that lens.”

“There are so many moving parts to this opinion – factual decisions made by the court below and then legal conclusions – it’s just really hard to say what the court will do,” he adds. “I do think the court will have to take one of these cases. I don’t think it will just let every secretary of state decide on their own whether to bar or keep Trump on the ballot, so I do think they will have to take this case, whether or not they want to.”

One thing is certain: The ruling from the Colorado Supreme Court threw Trump’s GOP primary challengers a lifeline and a reason to stay in the race – though they managed to mask any glee in reacting to the decision.

“I will beat him fair and square,” former South Carolina Gov. Nikki Haley said. “The last thing we want are judges telling us who we can and can’t vote for.”

“It’s unfair,” Florida Gov. Ron DeSantis said. “They’re abusing power 100%.”

Entrepreneur Vivek Ramaswamy vowed to withdraw from the Colorado primary until Trump’s name is restored.

Even former New Jersey Gov. Chris Christie – the most vocal critic of Trump in the primary – took issue with the court’s ruling.

“I do not think Donald Trump should be prevented from being president of the United States by any court. I think he should be prevented from being president of the United States by the voters of this country.”

Only former Arkansas Gov. Asa Hutchinson, who has yet to drop out despite barely registering in the polls, sought to capitalize on the moment, noting how he raised this exact concern in the first presidential debate this fall in Milwaukee.

”The factual finding that he supported insurrection will haunt his candidacy,” he said.

Perhaps one day. But if the past four months have made clear anything about Trump’s candidacy, it’s that every time he faces new indictments, new criminal charges or new legal hurdles – gag order or otherwise – his supporters grow more emboldened and his support among Republican voters ticks upward.

For one, Trump’s legal woes – 91 criminal charges spanning four indictments – seem to bolster his claims that the Biden administration and the so-called “deep state” is conducting an unfair witch hunt and using all means necessary – including subverting the law – to prevent him from running for president.

“BIDEN SHOULD DROP ALL OF THESE FAKE POLITICAL INDICTMENTS AGAINST ME, BOTH CRIMINAL & CIVIL,” Trump posted to his TruthSocial account Wednesday morning. “EVERY CASE I AM FIGHTING IS THE WORK OF THE DOJ & WHITE HOUSE. NO SUCH THING HAS EVER HAPPENED IN OUR COUNTRY BEFORE. BANANA REPUBLIC??? ELECTION INTERFERENCE!!!”

As it stands, Trump is registering anywhere from 20 to 40 percentage points ahead of his GOP primary challengers, depending on the state, and is even polling ahead of Biden in a handful of crucial swing states.

Despite the boon that Trump’s mounting legal challenges seem to be lending his campaign, his inundated legal calendar is slated to collide with the 2024 election, with nearly a dozen deadlines or scheduled court appearances in the next month alone for Trump and his defense teams.

The Colorado Supreme Court’s decision to bump Trump from the ballot adds even more to that calendar – and likely sets the stage for a Supreme Court intervention that reverberates in the halls of America’s democracy.

“This is the most pressing constitutional question of our times and it will be a test of America’s commitment to its democracy, to its Constitution and to its rule of law,” said Michael Luttig, former federal judge for the U.S. Court of Appeals for the 4th Circuit for 15 years. “Arguably when it’s decided by the Supreme Court, it will be the single most important constitutional decision in all of our history.”

Luttig, who was appointed by former President George H.W. Bush and who has long called for those in the legal profession to take a more outspoken stance against Trump, called the Colorado Supreme Court’s opinion “masterful,” “brilliant” and “an unassailable interpretation of the 14th Amendment, Section 3 disqualification clause.”

“This court held correctly and unquestionably correctly that the presidency is an office under the United States, that the president is an officer of the United States and that he takes an oath to support the Constitution of the United States when he takes the presidential oath prescribed by the Constitution.”

Luttig said that he understands the argument made by some that the court’s decision takes out of voters’ hands the decision about who is allowed to run for president and places it in the justices’ hands, but he noted that it’s the Constitution itself that deems the qualifications – and disqualifications – for the presidency.

“What I would say to all Americans is that the Constitution itself has determined that the disqualification of the former president is not what’s anti-democratic, rather the Constitution tells us that it’s the conduct that can give rise to disqualification under the 14th Amendment that is anti-democratic,” he said. “So in other words, the people of America, through their Constitution and through the 14th Amendment in particular have decided that disqualification is not anti-democratic.”