Washington — Former President Donald Trump on Thursday urged the Supreme Court to reverse a decision from Colorado’s top court that found he is disqualified from holding the presidency under a Civil War-era provision of the Constitution, calling on the justices to “put a swift and decisive end” to efforts to keep him off the ballot.
In an opening brief to the Supreme Court, Trump’s lawyers said the challenges to his candidacy threaten to disenfranchise millions of Americans and “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 brief presents an early look at the arguments his lawyers plan to put forward when they appear before the justices to argue the case on Feb. 8. They are asking the nation’s highest court to decide whether the Colorado Supreme Court was wrong to order Trump be kept off the state’s 2024 presidential primary ballot.
“The Court should reverse the Colorado decision because President Trump is not even subject to section 3, as the president is not an ‘officer of the United States’ under the Constitution. And even if President Trump were subject to section 3 he did not ‘engage in’ anything that qualifies as ‘insurrection,'” his lawyers wrote. “The court should reverse on these grounds and end these unconstitutional disqualification efforts once and for all.”
They urged the Supreme Court to issue a decisive ruling on Trump’s eligibility under Section 3 of the 14th Amendment and warned that anything less “will only delay the ballot-disqualification fight, and there is no shortage of legislators determined to use section 3 as a cudgel to bar President Trump from the general-election ballot or from taking office if this Court leaves any wiggle room for them to do so.”
The Colorado decision
The Colorado Supreme Court’s landmark decision marked the first time the Constitution’s insurrection clause has been used to exclude a presidential candidate from the ballot. In its divided 4-3 decision, the state court determined that under the constitutional provision, Trump is disqualified from holding the presidency because he “engaged in insurrection” with his conduct related to the Jan. 6, 2021, assault on the U.S. Capitol.
The four-justice majority concluded that the Colorado secretary of state couldn’t list Trump’s name on the primary ballot or count write-in votes cast for him. But the court paused its decision to allow for the Supreme Court’s review.
Section 3 of the 14th Amendment prohibits anyone who has sworn an oath to support the Constitution and then engaged in insurrection against it from holding public office. Enacted to keep former Confederate officials from federal office, unless they received amnesty from Congress, it has seldom been used in modern times and never against a former president.
The Colorado dispute presents a number of novel and untested legal questions that the Supreme Court may consider, including whether Section 3 applies to the president and presidency, whether the provision can only be enforced by a state once Congress passes legislation, and whether Trump engaged in insurrection against the Constitution.
The former president also argued that Section 3 prohibits individuals only from holding office, and does not prevent a candidate from running for office or even being elected.
Backing Trump in his dispute are the GOP political groups such as the Republican National Committee, 27 red states and more than 175 Republican members of Congress, including Senate Minority Leader Mitch McConnell and Speaker Mike Johnson.
“The Colorado Supreme Court’s opinion so broadly interpreted ‘engage in’ that it sailed right past President Trump’s repeated statements to his supporters — both before the breach of the Capitol and after it was breached — telling them to act peacefully, and that he later told them via video to ‘go home now,'” the GOP lawmakers wrote in a friend-of-the-court-brief. “It is hard to imagine an actual insurrectionist quickly asking for peace and encouraging disbandment.”
Former GOP Rep. Peter Meijer, who was one of 10 House Republicans who voted to impeach Trump on one article of incitement of insurrection following the Capitol attack, also urged the Supreme Court to reverse the Colorado decision, calling it an “affront to the very democracy it purports to protect.”
“By restricting Americans who reside in Colorado from exercising the same rights as Americans in other states in determining who will lead the executive branch of the federal government, the Colorado Supreme Court (and other states that may reach the same conclusion) is essentially blocking those citizens from exercising their rights,” he told the court in a filing.
The six voters who filed the lawsuit in Colorado state court challenging Trump’s eligibility for a second term will submit their own brief with the justices, due Jan. 31. In a filing before the Supreme Court agreed to review the lower court’s ruling, lawyers for the voters urged the justices to intervene and decide questions of Section 3’s legal interpretation.
“Trump offers no explanation why anyone would design a system where voters must wait until after a presidential election is over before learning whether the winning candidate is qualified to hold office,” they wrote in the Jan. 4 brief. “That is a recipe for ensuring the events of January 6, 2021, become a regular part of American politics.”
The group of voters — four Republicans and two unaffiliated — stressed that the public should know who is qualified for office before casting ballots.
It’s unclear how soon after arguments the Supreme Court will issue a decision, though the voters and Trump have urged the justices to act swiftly. The high court’s ruling is expected to answer whether Trump is eligible to hold office again and therefore can be included on primary and general election ballots nationwide.
Colorado and 15 other states hold their GOP presidential primaries on March 5, known as Super Tuesday. Challenges to Trump’s candidacy mounted in other states have also put pressure on the Supreme Court to decide whether he is eligible for the White House.
In Maine, a superior court judge paused a decision from the state’s top election official that determined he is disqualified from holding office under Section 3. The judge ordered Secretary of State Shenna Bellows, a Democrat, to reconsider her ruling after the Supreme Court decides the Colorado case.
Oregon’s Supreme Court declined to review a challenge from five voters there that sought to keep Trump from the state’s primary and general election ballots. State high courts in Michigan and Minnesota also turned away bids from voters seeking to keep Trump off the primary ballots there, but did not preclude them from renewing their challenges for the general election.
