Trump, who is the front-runner in polls for the 2024 Republican presidential nomination, argued that the voters should decide who is elected to the nation’s highest office, and that state judges should not decide his eligibility. His lawyers wrote that the Colorado decision “would unconstitutionally disenfranchise millions of voters in Colorado and likely be used as a template to disenfranchise tens of millions of voters nationwide.”
While they did not propose a timetable, the lawyers said it was crucial that the court take up the issue urgently.
Trump’s team offered several reasons for overturning the Colorado court. One would be to rule that the president was not covered by Section 3 of the 14th Amendment, an argument that was adopted by a lower-level Colorado trial judge.
“Nothing that President Trump did ‘engaged’ in insurrection,” they said in defending his actions before the insurrection at the U.S. Capitol on Jan. 6, 2021. “President Trump never told his supporters to enter the Capitol, either in his speech at the Ellipse or in any of his statements or communications before or during the events at the Capitol.”
The Colorado Supreme Court became the first in the nation to hold that Trump is disqualified from holding office again. By a 4-3 vote, the state judges said Trump “engaged in insurrection” in a failed bid to overturn his defeat in the 2020 election.
But the state judges agreed to put their ruling on hold while Trump appealed to the U.S. high court. As a result, his name will appear on the state’s Republican primary ballots.
At issue more broadly is whether the former president may be disqualified from holding future office because he violated a provision of the 14th Amendment adopted after the Civil War.
The amendment, which is best known for having extended equal rights and liberties to all Americans, also sought to prevent ex-Confederates from holding office again. Section 3 says, “No person shall … hold any office, civil or military” who, “having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”
For the last year, law professors and judges have been debating whether that provision applies to the Jan. 6 mob attack on the U.S. Capitol, and if so, how.
Trump has not been indicted for inciting an insurrection, although he faces other lesser criminal charges, including conspiring to obstruct an official proceeding.
Two years ago, he was impeached by the House for his role in the Jan. 6 attack, and 57 senators found him guilty. That was 10 votes short of the two-thirds of the Senate required for a conviction, which meant Trump was found not guilty of insurrection.
Acting on a suit brought by several Colorado Republicans, a state trial judge and the state Supreme Court majority said the evidence clearly demonstrated the former president used false claims of vote fraud to persuade his most fervent followers that the election had been stolen.
At his urging, tens of thousands came to Washington on Jan. 6, 2021, and then marched to the Capitol seeking to stop the certification of Joe Biden’s victory.
“The record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country,” the Colorado judges wrote. “This constituted an insurrection.”
Moreover, the insurrection was fomented by the former president, they said. “President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary. Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.”
Finally, they dismissed the legal claim that the presidency is not covered by Section 3 of the 14th Amendment.
“President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three,” they said.
Maine’s secretary of state said last week that she agreed with the Colorado ruling and would remove Trump’s name from her state’s primary ballot.