DENVER — Former President Donald Trump is not allowed on the Colorado primary ballot, the state Supreme Court decided Tuesday afternoon. The justices ruled 4-3 that Trump should be disqualified from the primary ballot under Section 3 of the 14th Amendment.
However, the decision is stayed until Jan. 4, subject to any appeals, meaning Trump's name will remain on the ballot if the decision is appealed to SCOTUS by Jan. 4.
"We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us," the decision reads on page 9 of the 213-page ruling. "We are also cognizant that we travel in uncharted territory."
The state's highest court affirmed a lower court's ruling that there was an insurrection, that Donald Trump participated in it, that his incitement of insurrection was not free speech, and that the 14th Amendment applies to the President.
"But does the U.S. Constitution authorize states to assess the constitutional qualifications of presidential candidates? We conclude that it does," the decision reads.
The court cites former Supreme Court Judge Neil Gorsuch in Hassan v. Colorado, saying, "it is 'a state’s legitimate interest in protecting the integrity and practical functioning of the political process' that 'permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.'"
Regarding state courts' ability to decide presidential candidate qualifications, Colorado's high court writes, "We conclude that they [state courts] do, provided their legislatures have established such authority by statute. Analyzing the relevant provisions of the Election Code, we then conclude that the General Assembly has given Colorado courts the authority to assess presidential qualifications and, therefore, that the Electors have stated a proper claim under sections 1-4-1204 and 1-1-113."
"We conclude that certifying an unqualified candidate to the presidential primary ballot constitutes a 'wrongful act,'" the decision reads. "Were we to adopt President Trump’s view, Colorado could not exclude from the ballot even candidates who plainly do not satisfy the age, residency, and citizenship requirements of the Presidential Qualifications Clause of Article II."
The next step after the state Supreme Court would be the U.S. Supreme Court, which has never ruled on Section 3.
Read the full ruling here:
Oral arguments in the state's highest court began nearly two weeks ago, after both a liberal group seeking to disqualify Trump and the former president himself appealed a lower court's ruling that Trump “engaged in insurrection” on Jan. 6, 2021, but can stay on the state’s ballot.
In September, the liberal group Citizens for Responsibility and Ethics in Washington (CREW), along with four Colorado Republicans and two unaffiliated voters, sued to disqualify Trump from the Colorado primary ballot, based on Section 3 of the 14th Amendment of the U.S. Constitution.
Section 3 is a clause that bars people from holding office who have taken an oath to support the Constitution and "engaged in insurrection or rebellion" against the Constitution. It was created to prevent former Confederates from returning to government positions.
Trump's attorney had no immediate comment for 9NEWS.
Colorado Republican Party Chair Dave Williams said in a texted statement to 9NEWS, "Thank God the US Supreme Court will get the final say against the out of control radicals in charge of Colorado who would rather spit on our constitution than let the people decide which candidates should represent them in a free and fair election."
“The court’s decision today affirms what our clients alleged in this lawsuit: that Donald Trump is an insurrectionist who disqualified himself from office under Section 3 of the 14th Amendment based on his role in the January 6th attack on the Capitol, and that Secretary Griswold must keep him off of Colorado’s primary ballot. It is not only historic and justified, but is necessary to protect the future of democracy in our country,” said CREW President Noah Bookbinder in a statement posted on CREW's website. “Our Constitution clearly states that those who violate their oath by attacking our democracy are barred from serving in government. It has been an honor to represent the petitioners, and we look forward to ensuring that this vitally important ruling stands.”
In November, a Denver district court judge ruled that Trump did engage in an insurrection, but that the 14th Amendment did not apply to the president.
During the Supreme Court hearing nearly two weeks ago, attorneys for CREW argued that the president should be covered.
“Section 3 of 14th Amendment is our Constitution’s self-defense mechanism. It’s the answer to the idea to those that take the oath and take an insurrection against it should not be entrusted with public office,” said CREW attorney Jason Murray.
Part of the argument in front of the Colorado Supreme Court was about if president should be included based on the writing of Section 3.
"Can you cite me a provision in the Constitution where the Presidency is defined as an office of the United States or an office under the United States?” Justice Richard Gabriel said.
"I think it would be strange to say the office of the presidency is anything else,” Murray said.
“If it was so important that the president be included, I go back to the question, ‘why not spell it out?’” Justice Carlos Samour said.
If the U.S. Supreme Court is the likely next step, 9NEWS asked a constitutional law expert to answer a few questions. Jessica Smith, a partner at Holland and Hart in Denver, offered her analysis.
9NEWS: What are the federal questions in this case that the Supreme Court can review?
Smith: There are a lot of federal questions. There’s the question of whether or not the political question doctrine bars this entire suit. There's the question of whether or not the presidency and the president is an office or officer of the United States under Section 3 of the 14th Amendment. There's the question of whether or not he engaged in insurrection. There’s the question of whether or not the First Amendment protects his speech. All of those are federal questions the U.S. Supreme Court can reach.
9NEWS: The Colorado court determined Donald Trump was disqualified from the primary ballot because he engaged in an insurrection. How can the Supreme Court consider questions of insurrection?
Smith: It could take Section 3 of the 14th Amendment and could say it means A, B, C, D, and one thing is it requires criminal conviction. Or that it requires a legislative act. Or that it requires some sort of jury trial. SCOTUS could do basically the same analysis that the Colorado Supreme Court did and come to different conclusions about what the 14th Amendment actually requires.
9NEWS: Courts have ruled against similar efforts to get Trump banned from ballots in other states. What does this decision out of Colorado mean now?
Smith: All of President Trump’s losses, and sometimes wins, have been on different procedural, not merits, grounds. A couple of states have reached similar questions, but no state has gone as far as the Colorado Supreme Court has gone. So I’m interested to see what other states do with the Colorado Supreme Court’s opinion, and if we see follow on lawsuits, challenges, opinions, in the next few weeks, months.
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