Donald Trump appealed to the US supreme court on Wednesday to undo the Colorado ruling that removed him from the ballot in the western state under the 14th amendment to the US constitution, for inciting an insurrection.
“In our system of ‘government of the people, by the people, [and] for the people,’ Colorado’s ruling is not and cannot be correct,” Trump’s lawyers wrote in their Wednesday filing. They also said the Colorado supreme court’s decision “if allowed to stand, will mark the first time in the history of the United States that the judiciary has prevented voters from casting ballots for the leading major-party presidential candidate”.
They went on to lay out several reasons why the supreme court should restore Trump to the ballot. Only Congress, not the courts, had the authority to evaluate a dispute over the eligibility of a presidential candidate, they wrote. As president, his lawyers argued, Trump was not an “officer” of the United States – relevant language in the constitution bars anyone from serving if they have “engaged in insurrection” as an officer of the United States.
They also argued that Trump’s conduct did not amount to an insurrection and that the Colorado supreme court’s decision ran afoul of a provision of the constitution that empowers state legislatures to decide how to appoint presidential electors.
Trump’s appeal came after both the Colorado Republican party and the challengers who brought the case both asked the justices to take the case. They are widely expected to do so.
A ruling either pausing or allowing the Colorado supreme court’s decision to stand could come fairly quickly, though the exact timeline is unclear. Colorado must begin mailing ballots to overseas voters for its 5 March primary on 20 January. Clerks must start mailing ballots to all other voters between 12 and 16 February.
Jena Griswold, Colorado’s secretary of state, asked the court this week to resolve the issue “as expeditiously as possible in light of the upcoming election calendar”. The Colorado supreme court said in its ruling last month that the decision was paused while an appeal in the US supreme court was ongoing.
Promising to appeal “swiftly”, a spokesperson for Trump, Steven Cheung, said the former president turned clear Republican presidential frontrunner had “full confidence that the US supreme court will quickly rule in our favour”.
After the Colorado ruling, Trump was also removed from the ballot in Maine, by its secretary of state, who also suspended the ruling pending appeals. Trump appealed that ban in state court on Tuesday.
Separately, Trump faces 91 criminal charges, 17 for election subversion. In the federal election subversion case, the US supreme court is also due to consider Trump’s claim that he enjoys immunity from prosecution for any acts he committed while in office.
The supreme court is dominated 6-3 by conservatives, in large part thanks to three appointments made when Trump was in office.
The 14th amendment was adopted in 1868, soon after the civil war. Section 3 provided for barring from federal and state office anyone who fought for the Confederacy in that conflict.
Notably, the provision has rarely been used. Many legal observers expect Trump to prevail in the Colorado case, one of numerous such challenges, others having failed in state courts.
The supreme court does not have to take the Colorado case but in all likelihood will. Its handling of the case will be closely watched, not least by progressives angered by the court’s rightward shift and contentious rulings, including the removal of the federal right to abortion.
In the aftermath of the Colorado ruling, Ty Cobb, once a White House lawyer for Trump, told CNN: “I think this case will be handled quickly. I think it could be 9-0 in the supreme court for Trump … because I think the law is clear.”
According to Cobb – and other former Trump lawyers – the law is clear that the presidency and vice-presidency are not covered by section 3, specifically its definition of a government office, because those positions are not mentioned.
In full, section 3 reads: “No person shall be a senator or representative in Congress, or elector of president and vice-president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Last week, ABC News examined records of debate over the 14th amendment. In one exchange, Reverdy Johnson, a Maryland senator, asked why the text of section 3 did not mention the presidency or vice-presidency.
Lot Morrill, from Maine, said: “Let me call the senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”
That, Steven Portnoy of ABC wrote, “end[ed] the discussion on that point”.
J Michael Luttig, a conservative former judge who testified in front of the House January 6 committee, has repeatedly stressed that in his view, Trump should be removed from the ballot.
Speaking to MSNBC in December, Luttig saluted a “historic [and] unassailable decision that the former president is disqualified from the presidency because he conducted, engaged in, or aided or supported an insurrection or rebellion against the United States constitution”.
Trump and other Republican presidential contenders have said barring Trump under the 14th amendment would be anti-democratic, and that only voters should choose who is fit for office. So have prominent Democrats.
Luttig said: “What I would say to all Americans is that the constitution itself has determined that the disqualification of the former president is not what is anti-democratic.
“Rather, the constitution tells us that it is the conduct that can give rise to disqualification under the 14th amendment that is anti-democratic.”
