Predicting a “national disaster” in politics next year if Donald Trump’s presidential candidacy is barred, Colorado’s Republican leaders on Wednesday night asked the Supreme Court to rule speedily on the historic constitutional controversy.
The nation, the new appeal argued, could wind up with 51 different state approaches to Trump’s eligibility unless the Justices overturn the recent Colorado Supreme Court ruling disqualifying him from that state’s primary election ballot next March 5.
“There is a real risk” that other states will borrow the Colorado court’s “flawed and unprecedented analysis,” since similar challenges are pending in state courts in at least a dozen other states, the new filing said.
Trump’s legal team is expected to file their own appeal defending his candidacy, probably within the next few days. He took part in the Colorado case that was filed against him by GOP and independent voters in the state.
The Justices have complete discretion to grant or deny review, but it would take the votes of only four of the nine to put the case before the Court for a hearing and decision. The Colorado GOP asked the Court to expedite its handling of the dispute. The Justices very likely will not act until they hear from Trump and get a response from the Colorado voters who challenged him.
The Colorado Supreme Court, in a 4-to-3 decision on December 19, ruled that Trump is constitutionally disqualified from the office of the Presidency under the Constitution’s 14th Amendment. It found that he had violated his oath to defend the Constitution by engaging personally in an “insurrection” in his role in the January 6, 2021, violent assault on the U.S. Capitol in an attempt to overturn his defeat in the 2020 election.
The Colorado court decided a dozen separate issues, under both state law and the federal Constitution. The Colorado Republican petition raised three constitutional issues:
- Does the 14th Amendment Section 3, invoked against Trump, even apply to the Presidency?
- Does that section allow any state to bar a presidential candidate if Congress has not passed a law to enforce the provision?
- Does a political party have a constitutional right under the First Amendment “right of political association” to choose the candidate of its choice?
On those points, the state court ruled that the clause does apply to the Presidency, that it is “self-executing” so does not need any action by Congress, and that a political party does not have a constitutional right to put a disqualified candidate on the presidential primary ballot.
When Trump’s own appeal is filed, he could raise other issues in challenging the state court ruling – including whether this controversy involves a “political question” so the courts have no role in it, whether his First Amendment right of free speech has been violated by the decision, and whether he engaged in an “insurrection” in the January 6 incident.
Among other factors likely to lead the Court to take on the controversy is that there already is a disagreement among state supreme courts about the 14th Amendment questions. The Minnesota Supreme Court has cleared the way for Trump to run in that state’s presidential primary, and the Michigan Supreme Court on Wednesday morning ended the dispute in that state by refusing to review a lower state court ruling in Trump’s favor.
The Justices also may feel a need to get involved in order to assure that there is a uniform, national interpretation of what the Constitution does, or does not, require in a legal situation like Trump’s.
This dispute is one of several involving Trump that will soon be reaching the Court. it is awaiting a lower appeals court ruling on the former President’s claim that he has complete immunity to being prosecuted for crimes while he was in office (the Justices recently refused to take on that case before the appeals court ruled), it may be drawn into the dispute over whether federal judges can impose a “gag order” on Trump to prevent him from interfering with the criminal trials he faces, and it very likely would be asked to review any criminal conviction of Trump that resulted from any of his trials. He faces a total of 91 separate criminal charges, now pending in four different courts.
The Colorado ruling against Trump’s candidacy is not in effect at this time. The court postponed it until January 4 to allow time for any appeals to the Supreme Court. If the Supreme Court agrees to review the dispute, Trump will be listed on the primary ballot in Colorado unless the Justices, in the end, rule against him.
Some GOP political operatives in Colorado who prefer Trump as the party’s choice have said recently that they will consider turning to a separate process solely within that party to nominate him – say, by a special convention or canvass among Republicans. That maneuver, however, could not assure that he would be on the Colorado ballot for the general election next November 5 unless the Supreme Court overturned the state court ruling in the meantime.
The general election is not a political party event but rather a statewide election run by state officials, who would be required to obey the state Supreme Court decision if it were to survive Supreme Court review.
Earlier in the day in Michigan, that state’s Supreme Court opted against reviewing the 14th Amendment challenge to Trump. It made no comment on any disputed issue, simply noting that it was refusing to review a lower state court decision that rejected the constitutional challenge to his candidacy.
The next state to act on the controversy could be Maine, since the secretary of state there has promised a decision – perhaps this week – on the challenge. Any ruling by that official could be challenged in state courts.
So far, Colorado is the only state where Trump has been ruled disqualified.
