Former President Donald Trump asked the Supreme Court on January 3 to allow him to stay on the presidential primary ballot in Colorado, saying a state ruling banning him was unconstitutional, unfair, and based on a January 6 insurrection that his appeal said did not happen. The court filing, dominated by technical and procedural challenges to the Colorado Supreme Court ruling last month, does not ask the high court to weigh in on whether the former president indeed participated in an insurrection. The state’s highest court concluded that Trump indeed engaged in the January 6 insurrection effort and thus was banned from running under an obscure, Civil War-era clause in the Constitution’s 14th Amendment banning such a person from holding office.
Former President Donald Trump’s appeal, which experts expect the high court to consider, instead argues that the Colorado court had no business getting involved in the matter at all and that keeping Trump off the ballot would deprive voters of their right in a democracy to choose their leaders. The decision is “a ruling that, if allowed to stand, will mark the first time in the history of the US that the judiciary has prevented voters from casting ballots for the leading major-party presidential candidate,” said the court papers filed late Wednesday afternoon, two days before a deadline to appeal or get booted off the Colorado Republican Party primary ballot.
The Colorado court ruled in favor of six Republican and independent voters who said the “insurrection clause of the 14th Amendment to the Constitution makes Trump ineligible to hold office and thus, not qualified to be on the ballot. That clause, originally directed at Confederates, says no one can hold office who has previously taken an oath to support the Constitution but then engaged in an insurrection or provided help to enemies of the US.
Former President Donald Trump’s team, in their legal brief, argued that Congress gets to decide a candidate’s eligibility to serve as president. And while the appeal was specific to the Colorado case, it tacitly invited the high court to offer a ruling that applied nationwide. “It would be beyond absurdity” for the ballot question to be determined by 51 separate state and District of Columbia jurisdictions rather than federal courts, the brief said. “The election of the President of the United States is a national matter, with national implications, that arises solely under the federal Constitution and does not implicate the inherent or retained authority of the states.”
The brief said former President Donald Trump was never an “officer” of the US and that the oath he took as president was different than those taken by other public servants, meaning he was not subject to the ban on insurrectionists. Further, the court papers said, the clause merely says such an individual cannot serve – not that he or she can’t run for office. The term “insurrection” is unclear, the brief said, and anyway, his lawyers said, Trump did not engage in “insurrection.” “Trump never told his supporters to enter the Capitol, either in his speech at the Ellipse or in any of his statements or communications before or during the events at the Capitol,” the appeal said. “To the contrary, his only explicit instructions called for protesting “peacefully and patriotically” to “support our Capitol Police and Law Enforcement,” to “[s]tay peaceful” and to “remain peaceful.”
Jena Griswold, Colorado’s Democratic secretary of state, urged the high court to settle the matter. “Donald Trump just filed an appeal to the US Supreme Court to consider whether he is eligible to appear on Colorado’s Presidential Primary ballot. I urge the Court to consider this case as quickly as possible,” Griswold wrote on social media.
The appeal is virtually certain to be heard by a Supreme Court whose reputation as an unbiased arbiter has suffered immensely in recent years. Questions about ethical transgressions, along with the stunning 2022 reversal of the 1973 Roe v. Wade decision guaranteeing abortion rights, have turned the court, in the eyes of many Americans, into another partisan entity. The Trump case puts the court in an extremely uncomfortable position: No matter how it may rule, and no matter the legal arguments used to justify it, the decision is likely to cause a backlash from some political segments in deeply divided America. The high court was the target of criticism after its 2000 ruling that effectively made George W. Bush president. And while the justices may not want to enter that political fray again, competing decisions on the insurrection clause likely means the Supreme Court will have no choice but to get involved.
