Donald Trump can remain on Colorado’s ballot ahead of the Tuesday primary, the U.S. Supreme Court ruled Monday morning, overturning a Colorado Supreme Court decision that had found the former president ineligible.
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 on their own — 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,” says the per curiam opinion, which was not signed since it represents the opinion of the court.
The ruling effectively keeps the status quo for Colorado’s Tuesday Republican primary election. Ballots for that race were mailed to voters weeks ago, with Trump’s name listed as an option, while the appeal was playing out. This ruling 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 unsigned majority 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.”
In a statement posted to social media, Trump, who is decisively leading the race for the Republican nomination for president, wrote: “BIG WIN FOR AMERICA!!!”
But the ruling left room for the backers of the case, the liberal watchdog group Citizens for Responsibility and Ethics in Washington, to claim some margin of victory.
The 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, and the president’s legal team had urged the court to reverse that finding, too.
“While the Supreme Court allowed Donald Trump back on the ballot on technical legal grounds, this was in no way a win for Trump,” Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, 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.”
The case was filed by a group of unaffiliated and Republican Colorado voters, with support from CREW, a liberal watchdog group. They argued Trump was ineligible for office under the Civil War-era amendment to the Constitution. Section Three 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.
Trumps’ 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.
“They tried to overthrow an election. You don’t do that in the United States,” Norma Anderson, a Republican plaintiff on the case and former majority leader in the state Senate, said ahead of the Feb. 8 oral arguments at the U.S. Supreme Court. “That’s a threat to democracy. I am concerned about our country if everyone thinks that’s fine. And Donald Trump was the instigator of that — no one else.”
Trump’s legal team and other opponents of barring him from the ballot quickly launched a defense based on what they characterized as vagaries of the insurrection clause: Is the presidency, which is not specified in the amendment’s text, an office under the United States, and does the restriction cover someone who took the presidential oath of office, which does not include the word “support”?
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.
During oral arguments, the justices did not linger on whether the Capitol riot amounted to insurrection, or if the presidency was intended to be one of the offices covered by the 14th Amendment.
Instead, much of their focused was on whether states had the ability to bar national candidates for federal office. On that point, most — if not all — of the nine justices seemed skeptical.
As Justice Elena Kagan, one of the three liberal justices, put it: “Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?”
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