For the first time in history, a court has barred a major presidential candidate from the ballot for failing to meet the Constitution’s requirements.  Former President Donald Trump was disqualified today by the highest state court in Colorado.

The decision came this evening in the Colorado Supreme Court, by a vote of 4-to-3.  The order was put on hold until January 4 to allow Trump’s legal team to appeal; the only place where they can appeal is the U.S. Supreme Court in Washington.

The issue is expected to go quickly and directly to the Justices, and there seems little if any chance the Court would deny review.  State courts are split on the issue – a normal basis for the Justices to get involved — and, if the Court bypassed the issue, the state court ruling against Trump would be final in that state.

The Court’s own rules say that, while review is not guaranteed, factors that may count are that state courts are split on a “federal question” and that a state court has decided “an important federal question” that the Supreme Court has not ruled upon.  The Supreme Court has never issued a full-scale ruling on this question.

While no other state court has yet ruled as the Colorado tribunal did, other state courts may well interpret a denial of review as a hint that the Justices thought the Colorado court got it right.  The Minnesota Supreme Court previously rejected the challenge to Trump’s candidacy in that state, but the issue is pending in other states’ courts.

It will take the votes of only four of the nine Justices to agree to hear the case but it would take the votes of five to decide the expected appeal by Trump.

Since the issue is new for the Justices, these are some of the factors that may influence them if they move to a final decision:

• The Court majority is deeply fascinated by history, and this controversy involves a part of the Constitution adopted after the Civil War, to bar from office those who took part in that rebellion. It is an open question, however, whether that applies to future violent incidents by federal officials.
• The majority is also inclined to read the wording of the Constitution in a quite literal way, and many scholars who follow that approach (“textualism”) are conservatives who have interpreted the Constitution the same way as the Colorado court majority did.
• The controversy is developing just as the presidential election season is about to move into actual primary elections, and the Court may have some reluctance to disturb that scene in a profound way, as disqualification of Trump would do.
• Because a ruling would be of profound importance historically, the Court may want to strive for unanimity and that might be hard to achieve. This Court, though, has repeatedly ruled against Trump on other constitutional issues since the 2020 election controversy.

The ruling by the state court majority was a clear and explicit ruling on the meaning of a specific part of the Constitution – the 14^th Amendment’s Section 3.  That section, ratified with the remainder of the Amendment in 1868, bars from any office – state or federal – an official who previously took an oath to defend the Constitution and then engaged in insurrection or rebellion against the Constitution.

The Colorado court’s four-Justice majority reached its decision to disqualify Trump from that state’s presidential primary ballot for these main reasons:

• The Section 3 disqualification definitely does apply to the President as an officer of the United States. (That part of the ruling overturned the conclusion of a state trial judge who earlier rejected the challenge, for that reason.)
• Trump did engage in an “insurrection” by his actions that led to the violent attack on the U.S. Capitol on January 6, 2021, in the waning days of his Presidency; he had previously taken the oath when he became President. The trial judge had reached that same conclusion.
• Trump’s remarks in stirring up his followers is not a form of free speech protected by the Constitution’s First Amendment. That, too, agreed with the trial judge.

“We conclude,” the majority opinion said in a final paragraph, “that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the [Colorado] Election Code for the Secretary [of State] to list President Trump as a candidate on the presidential primary ballot.”  The primary election is set for March 5.

The court also ruled that the Secretary of State may not count any write-in votes that were cast for him, because state law bars counting of write-ins for a candidate who is not qualified to hold that office.  Thus, Trump followers could not try to support him that way.

The Secretary of State has a January 5 deadline for formal approval of the presidential primary ballot.  The state court, however, put its ruling on hold until the day before that – January 4 – in order to allow time for an appeal to the Supreme Court in Washington.

If a Trump appeal is filed with the Justices before that date, the ruling barring him from the ballot will not take effect and his name will appear on the ballot – unless, in the meantime, the Supreme Court were to take action to alter the situation.

Those provisions of the ruling would seem certain to force Trump’s team to act swiftly to try to get the Justices to take on the dispute.  His lawyers are expected to ask the Court to order that he stay on the ballot while the Court reviews his challenge to the Colorado decision.

The Colorado court majority’s 133-page opinion was issued in the name of the Court – “Per Curiam,” meaning “by the court.”  Joining in that ruling were Justices Richard J. Gabriel, Melissa Hart, William W. Hood III and Monica M. Marquez.

The three dissenters were Chief Justice Brian D. Boatright and Justices Maria E. Berkenkotter and Carlos A. Samour, Jr.  They each wrote a separate dissenting opinion, with the three totaling 78 pages.