DENVER (CN) — A deeply divided Colorado Supreme court on Tuesday declared former President Donald Trump ineligible to hold office under the 14th Amendment, reversing a lower court’s finding and booting him from the state’s Republican primary ballot.
The state's highest court stayed its decision until Jan. 4 — Colorado’s deadline to certify ballots — in anticipation of review by the U.S. Supreme Court. The order also precludes the secretary of state from counting any write-in entries for Trump.
"We are mindful of the magnitude and weight of the questions now before us,” the 133-page per curiam majority opinion said. “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."
The majority opinion was signed by Democratic Governor John Hickenlooper-appointed Justices Richard Gabriel, Melissa Hart, and William Hood as well as Bill Ritter-appointed Justice Monica Marquez.
Four Republican and two independent voters sued Colorado’s secretary of state in the District Court of Denver County in September, angling keep Trump’s name off the primary ballot. The voters claim Trump's efforts to overturn the results of the 2020 election — culminating in his Jan. 6 speech — disqualify him from holding office.
Passed in the aftermath of the Civil War, the amendment to the U.S. Constitution bars individuals from holding office if they “engaged in insurrection or rebellion” while under the oath of office. The ban can be overturned by a two-thirds vote in the U.S. House and Senate.
Following an expedited trial, Second Judicial District Judge Sarah Wallace found Trump incited an insurrection against the Constitution, but was not convinced that the 14th Amendment’s description of “an officer of the United States” explicitly included the president. Wallace therefore ordered the secretary of state to print Trump on the primary ballot.
Democratic Governor Jared Polis appointed Wallace this year.
The Colorado Supreme Court agreed with Wallace's conclusion that Trump committed insurrection and incited violence on Jan. 6, 2021, but reversed her decision that the 14th Amendment didn't apply to him.
While Trump has successfully blocked similar lawsuits in other states, Colorado law uniquely allows voters to petition the court for pre-election review.
“Indeed, the election code provides the electors their only viable means of litigating whether President Trump is disqualified from holding office under Section Three,” the state's high court found.
The nonprofit Center for Responsibility and Ethics in Washington sponsored the lawsuit. The voter petitioners include former Republican congresswoman Claudine Schneider, the Denver Post conservative columnist Krista Kafer, and former Colorado House and Senate Majority leader Norma Anderson.
“My fellow plaintiffs and I brought this case to continue to protect the right to free and fair elections enshrined in our Constitution and to ensure Colorado Republican primary voters are only voting for eligible candidates,” said Anderson in a statement. “Today’s win does just that.”
A spokesperson for Trump called the court’s opinion flawed and vowed to let the conservative-majority U.S. Supreme Court have the final say.
"Unsurprisingly, the all-Democrat appointed Colorado Supreme Court has ruled against President Trump, supporting a Soros-funded, left-wing group’s scheme to interfere in an election on behalf of Crooked Joe Biden by removing President Trump’s name from the ballot and eliminating the rights of Colorado voters to vote for the candidate of their choice,” said Steven Cheung, Trump Campaign Spokesman in a statement.
Hickenlooper-appointed Chief Justice Brian Boatright penned a dissent as did Justices Maria Berkenkotter and Carlos Samour, appointed by Polis and Hickenlooper respectively.
The majority opinion commended Wallace for turning out a detailed examination of the issues in such a short timeframe, noting “if any case suggests that it is not impossible to ‘fully litigate a 48 complex constitutional issue within days or weeks,’ this is it.”
Boatright disagreed, finding the case too complex for the expedited framework.
"The proceedings below ran counter to the letter and spirit of the statutory timeframe because the electors’ claim overwhelmed the process,” Boatright wrote in an 11-page dissent. The chief justice found the Colorado election code an inappropriate venue for deciding whether a candidate engaged in insurrection, particularly without a corresponding criminal conviction.
In a 43-page dissent, Samour expressed concern that Trump had been denied due process since the 14th Amendment lacks the procedures needed to determine whether someone has engaged in insurrection.
Samour heavily relied on the 1869 Supreme Court case of Caesar Griffin, who had tried to fight an assault charge by arguing the judge was disqualified to issue the sentence due to the 14th Amendment. In Griffin, Chief Justice Salmon Chase declared the proceedings to enforce the law "can only be provided for by Congress."
With a footnote reference to "The Princess Bride" — “I do not think [self-executing] means what [my colleagues in the majority] think it means” — Samour concluded that Congress must enact legislation to enforce Section Three of the 14th Amendment and the Colorado election code cannot simply invent a substitute.
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