Supreme Court agrees to hear Trump plea to remain on Colorado ballot



The Supreme Court building at sunset. (Katie Barlow)

The Supreme Court agreed on Friday to review a ruling by a Colorado court that barred former President Donald Trump from appearing on the state’s Republican primary ballot because of his role in the Jan. 6, 2021, attacks on the U.S. Capitol.

In a brief, unsigned order issued on Friday afternoon, the justices granted a petition for review filed by the former president and fast-tracked the briefing in the case, setting it for oral argument on Thursday, Feb. 8.

The case centers on the interpretation of Section 3 of the 14th Amendment to the Constitution, which was enacted in the wake of the Civil War to disqualify individuals who had been federal (or state) government officials before the war and had sworn to uphold the Constitution but then served in the Confederacy. It bars anyone who has served as “an officer of the United States” and has previously taken an oath to support the U.S. Constitution from holding “any office … under the United States” if he has “engaged in insurrection.”

A group of registered Republicans and unaffiliated voters eligible to vote in Colorado’s presidential primary filed the lawsuit last year. They argued that Trump should not be included on the state’s primary ballot because as president he had sworn an oath to support the Constitution but had engaged in insurrection on Jan. 6. They pointed to Trump’s false allegations of election fraud, as well as his statements at a speech on the Ellipse urging his supporters to march to the Capitol and fight there to prevent Congress from certifying the results of the 2020 presidential election.

During the violence at the Capitol that ensued, rioters assaulted over 100 police officers. Four rioters died at the Capitol, and several police officers involved in the attacks died by suicide in the months that followed. More than 800 rioters have either pleaded guilty or been convicted of federal crimes for their roles that day.

A state trial court agreed that Trump engaged in insurrection but concluded that Section 3 does not apply to the president because the presidency is not an “office … under the United States” and the president is not an “officer of the United States.”

The challengers appealed to the Colorado Supreme Court, which reversed in a ruling last month. It held that Trump was disqualified under Section 3 from serving as president and it barred the Colorado secretary of state from listing him on the primary ballot. But the court put its ruling on hold until Jan. 4, 2024 – the deadline for the secretary of state to certify the ballot – to give the Supreme Court time to weigh in. And it noted that as long as either Trump or the Colorado Republican Party, which like Trump had joined the lawsuit to defend his right to appear on the ballot, sought review by the Jan. 4 deadline, Trump would appear on the ballot unless the Supreme Court said otherwise.

Both the Colorado Republican Party and Trump came to the Supreme Court by the Jan. 4 deadline, urging the justices to take up the case and move quickly. Representing the party, Jay Sekulow told the justice that the state court’s ruling “presents a constitutional crisis, national in scope.” If it is allowed to stand, he cautioned, “any voter will have the power to sue to disqualify any political candidate,” which will “not only distort the 2024 presidential election but will also mire courts henceforth in political controversies over nebulous accusations of insurrection.”

In his own filing, Trump echoed Sekulow’s warnings, writing that the state court’s decision could be “used as a template to disenfranchise tens of millions of voters nationwide.” And he pushed back against the accusation that he had engaged in insurrection, invoking a “history of violent American political protests,” including the Black Lives Matter protests during the summer of 2020. And Trump added that he had merely instructed his supporters to protest “peacefully and patriotically,” not to enter the Capitol.

The challengers and Colorado Secretary of State Jena Griswold agreed that the justices should weigh in and should do so quickly. But they rejected Trump’s efforts to downplay his role in the Jan. 6 attacks, telling the justices that, “based on the facts found by the trial court, Trump’s intentionally mobilizing, inciting, and encouraging an armed mob to attack the United States Capitol on January 6 satisfies the legal definition of ‘engaging in insurrection.’”

In their order on Friday afternoon, the justices granted only Trump’s petition for review and set the case for oral argument in just over one month. Trump will file his opening brief on Jan. 18, with the response by the Colorado voters and secretary of state to follow on Jan. 31. Trump’s reply brief is due by 5 p.m. on Feb. 5, just three days before the oral argument.

This article was originally published at Howe on the Court.


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