The Colorado Supreme Court on Tuesday declared former President Donald Trump ineligible to appear on the state’s primary ballot under the U.S. Constitution’s insurrection clause.
“A majority of the court holds that Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment,” the court wrote in a 4-3 decision.
“We do not reach these conclusions lightly,” the majority opinion read. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
A lower court judge previously found that Trump engaged in insurrection but agreed with his lawyers’ arguments that Section 3 does not apply to the president. The state Supreme Court majority disagreed.
“President Trump asks us to hold that Section 3 disqualifies every oathbreaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land,” the majority opinion wrote. “Both results are inconsistent with the plain language and history of Section 3.”
One of the dissenting judges argued that Trump shouldn’t be disqualified unless he has been convicted of insurrection. Another raised due process concerns and argued that only Congress could enforce the ban.
Conservative attorney George Conway told MSNBC that he had been “skeptical” until seeing how “weak” the dissents were in the case — even as he acknowledged that the U.S. Supreme Court may overturn the ruling anyway.
“I have been a little skeptical of this theory until last night," Conway said. "Now I'm completely sold. I was sold by the dissents. I have been skeptical of this theory not because I found anything that [legal experts] said was wrong…I just thought, well, it's a little too good to be true. I really do want to see Donald Trump beaten at the polls, so I have been a little skeptical.
"Then I read the dissents," he added. "They are so unbelievably weak that I'm now convinced there really isn't an argument against what the Supreme Court did."
Conway argued that Section 3 does not mention requiring a conviction and none of the dissenting judges disagreed with the finding that Trump engaged in insurrection.
"It's strong evidence," he said. "You don't see the dissents challenging those findings at all, and in fact, there's no basis to challenge the findings. When you go to the majority opinion and read the 30 or 40 pages on what happened on Jan. 6 and what Donald Trump did before and during Jan. 6, there's no dispute. We saw it on television, and we know what happened. He engaged in an insurrection. He wanted this to happen, and not only that, there's another provision that talks about giving aid and comfort to enemies of the Constitution. He did that, he was an enemy of the Constitution. If this decision gets overturned, it's not going to be on the basis of the factual findings."
Retired conservative federal Judge J. Michael Luttig called the ruling a “masterful judicial opinion of constitutional law” that “will stand the test of the time.”
Former acting Solicitor General Neal Katyal argued that the ruling “follows pretty much directly from the text of the Constitution. So you know, someone like Donald Trump who claims to be a strict textualist when it comes to the Constitution has been hoisted on his own petard.”
Katyal predicted that the Supreme Court may vote to uphold the ruling, noting that the court ruled against his post-2020 election challenges and executive privilege claims.
“So, you know, I think that a fair-minded reading of this provision really compels this result,” he told MSNBC, adding that the Colorado Supreme Court “took pains to say, you know – this is just a quote from the opinion – ‘we’re mindful in our solemn duty to apply the law without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.’ And I think that the United States Supreme Court would apply that same standard. Trump will be disqualified from the ballot.”
Temidayo Aganda-Williams, a former House Jan. 6 committee investigator and attorney, told CNN that the Supreme Court “will have to look seriously at this and I think this will be tough to overrule.”
But the Supreme Court “may take some off-ramps here,” he added, noting that they may look at whether the plaintiffs in the case may lack standing or whether the state court lacks jurisdiction.
"I think what the American people are owed an opinion that goes to the heart and the merits of the case, which is, one, whether the former president engaged in insurrection against the Constitution,” he said. "I think that's what the court has to answer here."
Still, many legal experts expect the Supreme Court to reject the Colorado court ruling.
“I think this case will be handled quickly, I think it could be 9-0 in the Supreme Court for Trump,” former Trump White House lawyer Ty Cobb said in an interview on CNN. “I do believe it could be 9-0 because I think the law is clear,” he added.
“The real key issue in this case is — is Trump an officer in the United States in the context in which that term is used in the Article Three of the 14th Amendment,” he explained. “And in 2010, Chief Justice Roberts explained in free enterprise that people don’t vote for officers of the United States.”
New York University Law Prof. Melissa Murray said the Colorado opinion was “meticulous” and “important” but leaves the U.S. Supreme Court multiple questions to decide.
"I think one question here is whether or not the Colorado state court had jurisdiction to take this up, and that will be something the court will attend to,” she told MSNBC. “The question of whether or not Section 3 of the 14th amendment is self-executing, or whether it requires some kind of congressional action, like a statute providing a cause of action, is also another issue that the court could decide this on. And the due process issue. There are a number of off-ramps here.
“But, if the Supreme Court takes up the substantive question, determines that the text of Section 3 makes clear it applies to Donald Trump, and that Donald Trump was engaged in an insurrection on January 6th, this is going to set off a domino effect that literally will go throughout the country as more and more states line up to decide whether or not they will disqualify,” she added. “Remember, election law is a creature of state law. The states get to decide the procedures and the mechanisms for their own election — even federal election — and so each state can come to its own conclusion. And so, if the court decides this in a way that goes against Donald Trump, we may find ourselves with a patchwork of ballots on election night in 2024."
