The Colorado Supreme Court decided on Tuesday to disqualify former President Donald Trump from the state’s elections under the Fourteenth Amendment, raising a legal debate among judges and legal experts over whether Trump should be disqualified for being a “rebel,” as the matter is likely to head to the U.S. Supreme Court.
Key Facts
Section 3 of the Fourteenth Amendment, enacted after the Civil War, states that no person shall “hold any office [of government] if they have previously taken an oath and engaged in “insurrection or rebellion against the United States” or given “aid or comfort to their enemies.”
Legal Debates
The debate over whether Trump can be disqualified under the amendment intensified earlier this year after conservative legal scholars William Baude and Michael Stokes Paulsen stated in a forthcoming law review article, published as a draft, that the insurrection on January 6, 2021, disqualifies Trump from being president again – and that “the case is not even close” – claiming that the clause still stands and is “ready for use.”
This view has been endorsed by other legal experts, with conservative legal scholar J. Michael Luttig and left-leaning Lawrence Tribe co-authoring an article published in The Atlantic, supporting Trump’s disqualification under the Fourteenth Amendment, arguing that “no one who sought to overthrow our Constitution and then declared that it should be ‘ended’ and that they should immediately return to the presidency can take the good faith oath required of presidents.”
Others have taken the opposite view: Stanford law professor Michael McConnell wrote that although he has “little respect” for Trump, allowing secretaries of state to disqualify political opponents from elections would be “deeply anti-democratic,” and he does not believe that the events of January 6 rise to the level of insurrection. Noah Feldman, a law professor at Harvard University, asserted in an article published by Bloomberg that an 1869 circuit court ruling confirmed that the third clause of the amendment can only take effect if Congress enacts legislation directing its implementation.
State Election Officials
Election officials on both sides stated that they do not believe they have the authority to unilaterally disqualify Trump from elections, making the case one for the courts to decide, as lawsuits have been filed in more than 30 states contesting Trump’s nomination – with the Colorado Supreme Court ruling being the first decision against the former president.
The Colorado Supreme Court, which is entirely appointed by Democrats, ruled 4-3 that Section 3 could be used to disqualify Trump from the elections without any action from Congress, and that the events of January 6 constitute an insurrection in which Trump participated by encouraging his supporters to riot, and thus Trump should be disqualified from the presidency under the Fourteenth Amendment.
Key Quote
“We recognize the magnitude and weight of the questions we face now,” the Colorado Supreme Court stated in its ruling. “We also understand our official duty to apply the law, without fear or favor, and without being influenced by public reactions to the decisions we must make.”
Counter Response
The Colorado Supreme Court’s ruling came after several judges reached a contrary opinion or refused to consider the merits of the Fourteenth Amendment case. A Michigan appellate court and the Minnesota Supreme Court found it too early to bring the case – considering that the Fourteenth Amendment does not apply to primary elections – while a lower district court in Michigan ruled that it should be up to Congress to determine Trump’s qualifications. The Colorado case reached the state Supreme Court after a judge in another state ruled that although she believed Trump participated in an insurrection by encouraging his supporters on January 6, he should not be disqualified because the third clause of the Fourteenth Amendment does not explicitly state that it applies to presidents.
What
Must be followed
Trump strongly opposed the Colorado Supreme Court’s decision – and the argument based on the 14th Amendment more broadly – and his campaign said on Tuesday that the former president intends to appeal the court’s decision to the United States Supreme Court. Legal experts and government officials have long anticipated that the Supreme Court will eventually have to determine Trump’s qualifications under the 14th Amendment, although it is still uncertain whether the justices will hear the case or how they might rule. The Colorado ruling has been temporarily stayed pending what happens in the United States Supreme Court, so it is likely that Trump will still appear on the primary ballot in Colorado. January 5 is the deadline for printing primary ballots in Colorado, so unless Trump declines to appeal the ruling or the United States Supreme Court decides not to take the case or rules against Trump by then, he will remain on the ballot.
The Colorado ruling also only applies to that state, so unless the United States Supreme Court issues a broad ruling on Trump’s qualifications applicable to all states or other courts follow the same approach, Trump will remain on the ballots in other states even if he is removed in Colorado.
Main Background
The discussion surrounding Trump’s qualifications under the 14th Amendment comes after critics previously attempted to use the amendment in the 2022 midterm elections, with mixed results. An attempt to bar Rep. Marjorie Taylor Greene (Georgia) from running due to her support for the events of January failed when an administrative law judge ruled that “the evidence [of Greene’s involvement in the insurrection] is insufficient, and the court is not convinced.” Critics also sought to oust former Rep. Madison Cawthorn (North Carolina) from elections, which became moot after Cawthorn lost his primary race, but it led to a ruling from a federal appeals court stating that candidates can be disqualified under the 14th Amendment, despite a 19th-century law that was enacted to ensure former Confederates continued to hold government office. Koi Griffin, a local commissioner in New Mexico, was also removed from his position and barred from holding office again due to his role in the January events, marking the first use of the 14th Amendment to remove someone since 1869.
Future Reading
Trump strongly opposed the Colorado Supreme Court’s decision – and the argument based on the 14th Amendment more broadly – and his campaign said on Tuesday that the former president intends to appeal the court’s decision to the United States Supreme Court. Legal experts and government officials have long anticipated that the Supreme Court will eventually have to determine Trump’s qualifications under the 14th Amendment, although it is still uncertain whether the justices will hear the case or how they might rule. The Colorado ruling has been temporarily stayed pending what happens in the United States Supreme Court, so it is likely that Trump will still appear on the primary ballot in Colorado. January 5 is the deadline for printing primary ballots in Colorado, so unless Trump declines to appeal the ruling or the United States Supreme Court decides not to take the case or rules against Trump by then, he will remain on the ballot.
Applies to
The Colorado decision applies only to that state, so unless the U.S. Supreme Court issues a comprehensive ruling on Trump’s qualifications that applies to all states or other courts follow the same approach, Trump will remain on the ballot in other states even if he is removed in Colorado.
Future Reading
The discussion around Trump’s qualifications under the Fourteenth Amendment comes after critics previously attempted to use the amendment in the 2022 midterm elections, with mixed results. The effort to prevent Rep. Marjorie Taylor Greene (Georgia) from running due to her support for the events of January failed, as an administrative law judge ruled that “the evidence [of Greene’s participation in the insurrection] is insufficient, and the court is unconvinced.” Critics also sought to disqualify former Rep. Madison Cawthorn (North Carolina) from running, which became moot after Cawthorn lost his primary race, but it led to a ruling from a federal appeals court stating that candidates can be disqualified under the Fourteenth Amendment, despite a 19th-century law designed to ensure former Confederates could retain government jobs. Koi Griffin, a local commissioner in New Mexico, was also removed from office and barred from holding the position again due to his role in the January events, marking the first use of the Fourteenth Amendment to remove someone since 1869.
Future Reading
Trump has strongly opposed the Colorado Supreme Court’s decision – and the broader Fourteenth Amendment argument – and his campaign said Tuesday that the former president intends to appeal the court’s decision to the U.S. Supreme Court. Legal experts and government officials have long predicted that the Supreme Court will ultimately need to determine Trump’s qualifications under the Fourteenth Amendment, although it is still uncertain whether the justices will take up the case or how they might rule. The Colorado decision has been temporarily stayed pending what happens in the U.S. Supreme Court, so it is likely that Trump will still appear on the primary ballot in Colorado. January 5 is the deadline for printing the primary ballots in Colorado, so unless Trump chooses to forgo appealing the decision or the U.S. Supreme Court decides not to take up the case or rules against Trump before then, he will remain on the ballot.
The Colorado decision applies only to that state, so unless the U.S. Supreme Court issues a comprehensive ruling on Trump’s qualifications that applies to all states or other courts follow the same approach, Trump will remain on the ballot in other states even if he is removed in Colorado.
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