A group of Colorado voters on Friday asked the Supreme Court to bar Donald Trump from the state’s primary ballot, telling the justices in their brief that he is ineligible to return to the White House after spearheading the attack on the Capitol on Jan. 6, 2021.
The high court is set to consider on Feb. 8 the unprecedented question of whether a post-Civil War provision of the Constitution disqualifies Trump from holding office. The case will shape the course of the 2024 presidential election, in which Trump is on track to secure the Republican nomination for the third consecutive cycle.
The justices are reviewing a Colorado Supreme Court decision finding that Trump engaged in insurrection and is disqualified from the primary ballot under Section 3 of the 14th Amendment, which initially was adopted to prevent Confederate leaders from returning to the halls of power.
Whatever the court decides is likely to settle the issue in other states, where similar efforts are underway to remove Trump’s name from election ballots. Maine’s secretary of state reached the same conclusion as Colorado’s high court. But the decisions in both states were put on hold while litigation continues, so for now Trump’s name is slated to appear on the ballots for the March 5 primaries in those states.
With primary voting already underway, the justices fast-tracked the case for oral argument next month. Trump easily defeated Nikki Haley in the New Hampshire GOP primary this week after a decisive win in Iowa’s caucuses.
It is unclear whether Trump will attend the argument at the high court, but he has already tried to leverage his legal battles for political gain by making court appearances in his criminal and civil cases in Washington and New York in recent weeks.
The provision at issue before the Supreme Court bars former government officials, who pledged to support the Constitution, from returning to office if they have engaged in insurrection. Until the 2021 attack on the Capitol, the prohibition had been largely dormant for 150 years.
The Colorado voters say that the Constitution is clear and that Trump cannot return to office after summoning and encouraging an angry crowd of his supporters to prevent the peaceful transfer of power and the certification of Joe Biden’s 2020 election.
“Section 3 does not give a free pass to insurrectionist Presidents,” according to the brief from four Republican and two unaffiliated voters behind the lawsuit, represented by a Colorado-based legal team working with Citizens for Responsibility and Ethics in Washington. “Nobody, not even a former President, is above the law.”
Trump’s position, they said, is less legal than political in that he “not-so-subtly threatens ‘bedlam’ if he is not on the ballot,” in his own filing with the court last week.
“We already saw the ‘bedlam’ Trump unleashed when he was on the ballot and lost. Section 3 is designed precisely to avoid giving oath-breaking insurrectionists like Trump the power to unleash such mayhem again,” the voters’ attorneys told the court.
The voters used their brief in part to remind the justices of the timeline before and during the attack. Photos embedded in the filing show the mob amassing outside the Capitol, a police officer being crushed in a metal door frame and several of Trump’s tweets, including his call to supporters to “be there, will be wild.”
The justices are being asked to decide the central issue of whether Trump engaged in insurrection, but the high court could choose a narrower path to resolve the case.
In their opening brief, Trump’s attorneys said the former president called for “peaceful and patriotic protest” on Jan. 6, and they gave the justices several options for keeping him on the ballot without reaching the question of whether he participated in an insurrection.
They argued that Section 3 does not apply to the presidency because the president is not an officer of the United States, that Trump did not take the type of oath required for the provision to disqualify him, and that only Congress — not the courts — can enforce Section 3.
In response, the voters’ attorneys wrote that the plain meaning of “officer of the United States” in the provision is anyone who holds federal “office” — including the president. It makes no sense, they said, to read the provision as “disqualifying all oath-breaking insurrectionists except the one holding the highest office in the land.”
States traditionally have broad power to run presidential elections, and the Colorado voters noted the high court’s rulings upholding the authority of states to set ballot access rules. Allowing state officials to disqualify candidates without a separate act of Congress, they wrote, is consistent with past court decisions. States, for instance, disqualify candidates who do not meet the minimum age or citizenship requirements.
Trump’s lawyers also argued that the provision bars insurrections from holding, not running for, office.
But the voters told the court that putting off a decision about Trump’s eligibility until after the election would be a recipe for “mass disenfranchisement, constitutional crisis, and the very ‘bedlam’ Trump threatens.”
