Trump back on ballot in Colorado while state Republicans appeal ban to Supreme Court

The Colorado Republican Party on Wednesday appealed that state's Supreme Court decision that found former President Donald Trump is ineligible for the presidency, the potential first step to a showdown at the nation's highest court over the meaning of a 155-year-old constitutional provision that bans from office those who "engaged in insurrection."

The first impact of the appeal is to extend the stay of the 4-3 ruling from Colorado's highest court, which put its decision on pause until Jan. 4, the day before the state's primary ballots are due at the printer, or until an appeal to the U.S. Supreme Court is finished. Trump himself has said he still plans to appeal the ruling to the nation's highest court as well.

Colorado's Secretary of State Jena Griswold said Thursday that, with the appeal filed, Trump will be included as a candidate on the state's primary ballot unless the U.S. Supreme Court declines to hear the case or upholds the state supreme court's ruling.

The U.S. Supreme Court has never ruled on Section 3 of the 14th Amendment, which was added after the Civil War to prevent former Confederates from returning to government. It says that anyone who swore an oath to "support" the constitution and then "engaged in insurrection" against it cannot hold government office.

The Colorado high court ruled that applies to Trump in the wake of his role in the Jan. 6, 2021, attack on the U.S. Capitol, intended to stop the certification of President Biden's victory in the 2020 presidential election. It was the first time in history that the provision was used to block a presidential contender's campaign.

"The Colorado Supreme Court has removed the leading Republican candidate from the primary and general ballots, fundamentally changing the course of American democracy," the party's attorneys wrote Wednesday.

They said, "Unless the Colorado Supreme Court's decision is overturned, any voter will have the power to sue to disqualify any political candidate, in Colorado or in any other jurisdiction that follows its lead. This will not only distort the 2024 presidential election but will also mire courts henceforth in political controversies over nebulous accusations of insurrection."

The U.S. Supreme Court is expected to take the case, either after the Colorado GOP's appeal or Trump's own appeal. If Trump ends up off the ballot in Colorado, it would have minimal effect on his campaign because he doesn't need the state, which he lost by 13 percentage points in 2020, to win the Electoral College in the presidential election. But it could open the door to courts or election officials striking him from the ballot in other must-win states.

Sean Grimsley, an attorney for the plaintiffs seeking to disqualify Trump in Colorado, said on a legal podcast last week that he hopes the nation's highest court hurries once it accepts the case, as he expects it will.

"We obviously are going to ask for an extremely accelerated timeline because of all the reasons I've stated, we have a primary coming up on Super Tuesday and we need to know the answer," Grimsley said.

Grimsley followed through on his pledge Thursday with a request to the Supreme Court for it to speed up its consideration of the Colorado GOP's appeal and an appeal from Trump, should he seek the high court's review. 

"This case involves an issue of exceptional national importance: whether a former president, and current candidate for president, who has engaged in insurrection against the Constitution is disqualified from holding that office again," he and other lawyers representing voters wrote in their filing to the Supreme Court. "The petitions for certiorari should be resolved as quickly as possible — preferably by January 5 — so that, if the petitions are denied, Colorado ballots will not include a disqualified candidate."

More than a dozen states, including Colorado, are scheduled to hold primaries March 5 — Super Tuesday. Lawyers for the Colorado voters acknowledged there will not be enough time for the Supreme Court to decide the merits of the case — if it agrees to step in — before Colorado's secretary of state certifies the primary ballot on Jan. 5. But they said the court "should nevertheless decide the merits on an accelerated basis to reduce voter confusion and ensure that primary voters cast their vote knowing whether Trump is disqualified from the presidency."

Under a schedule proposed by the voters, the Supreme Court would consider requests to take up the Colorado GOP's appeal at its closed-door conference Jan. 5 and hear arguments on the merits on Jan. 19. They suggested the court issue a decision by Feb. 11, after which many states hold their Republican primaries or caucuses.

The Colorado Republican Party separately asked the Supreme Court to act quickly, arguing that the Colorado high court's ruling "looms over not just Colorado, but the entire nation."

"By excluding President Trump from the ballot, the Colorado Supreme Court engaged in an unprecedented usurpation of the rights of the people to choose their elected officials," lawyers for the party wrote in a filing. "The drastic effects of the Colorado Supreme Court's decision and the mischief it works upon the 2024 primary election — with national implications — necessitate this Court's immediate review."

The Colorado GOP requested the court discuss whether to take up the case at its earliest conference, set for Jan. 5, and hold arguments before March 5 if the justices agree to hear the dispute.

To date, no other court has sided with those who have filed dozens of lawsuits to disqualify Trump under Section 3, nor has any election official been willing to remove him from the ballot unilaterally without a court order.

The Colorado case was considered the one with the greatest chance of success, however, because it was filed by a Washington D.C.-based liberal group with ample legal resources. All seven of the Colorado high court justices were appointed by Democrats.

However, the unprecedented constitutional questions in the case haven't split on neatly partisan lines. Several prominent conservative legal theorists are among the most vocal advocates of disqualifying Trump under Section 3. They argue the plain meaning of the constitutional language bars him from running again, just as clearly as if he didn't meet the document's minimum age of 35 for the presidency.

The half-dozen plaintiffs in the Colorado case are all Republican or unaffiliated voters.

Trump has been scathing about the cases, calling them "election interference." He continued that on Wednesday as he cheered a ruling earlier that day by the Michigan Supreme Court leaving him on the ballot, at least for the primary, in that state.

"The Colorado people have embarrassed our nation with what they did," Trump said on Sean Hannity's radio show.

In:
• 14th Amendment
• Colorado
• Supreme Court of the United States
• Donald Trump