Legal Alert

Colorado Supreme Court Holds That Insurrection Clause Bars Trump From Primary Ballot

by Edward D. Rogers, Burt M. Rublin, Paul Keller Ort, and Edmund Nyarko
December 20, 2023

In a groundbreaking 4-3 decision headed by a 133-page majority opinion, the Colorado Supreme Court held yesterday that the Section Three of the Fourteenth Amendment (the Insurrection Clause) prohibits former President Donald J. Trump from seeking the office again. The ruling, issued in a state Election Code action filed by Republican and unaffiliated voters, bars the Colorado Secretary of State from placing President Trump’s name on the Republican presidential primary ballot. Recognizing that the opinion required “travel in uncharted territory,” the court stayed its order until January 4, 2024, to allow for review by the U.S. Supreme Court. The decision signals that, as in 2020, the judicial branch will once again be deeply enmeshed in the process for electing the President.

Although the majority readily acknowledged the unprecedented nature of the legal issues confronting it, its opinion will present challenges to the U.S. Supreme Court on review because it engaged in painstaking analysis of the facts and the law, an exhaustive review of historical sources, and employed well-accepted methods of constitutional and statutory interpretation. With respect to the Insurrection Clause, the majority primarily employed a textualist approach based on the Insurrection Clause itself as well as other provisions of the Constitution. For example, the majority adopted the ordinary and normal usage of the term “office” to conclude that the President was an officer of the United States (and that the office of the President was an “office . . . under the United States”) within the scope of the Insurrection Clause. The majority bolstered its analysis with the history surrounding the enactment of the Fourteenth Amendment, which included the goal of “disqualify[ing] oath-breaking insurrectionists from holding the office of the President.” As such, the majority opinion cannot easily be dismissed as results-oriented or the product of political partisanship.

All three dissenting justices wrote opinions. Two of the three focused entirely on the Colorado Election Code as opposed to federal constitutional considerations. The essence of the third dissent is that the Fourteenth Amendment affirmed the federal government’s supremacy over state governments following the Civil War, and therefore a state court cannot disqualify a presidential candidate without enabling legislation from Congress.

Yesterday’s decision could have diverse and far-reaching implications for the 2024 election. At present, similar challenges are pending in several battleground states, and additional cases could still be brought ahead of the primary season. The Colorado decision gives the U.S. Supreme Court an opportunity to interpret the Insurrection Clause in a way that would dictate the result in these pending and forthcoming cases. In this respect, the Colorado decision differs from most 2020 election lawsuits, which retrospectively challenged the outcome in various states and thus were ultimately dismissed on procedural grounds such as standing and mootness. Given the likelihood that the U.S. Supreme Court will take the case, its prospective nature will almost certainly require the Court to tackle the scope of the Insurrection Clause.

What is common to the 2020 election law challenges and yesterday’s decision is they highlight the tension within the federal Constitution between state and federal authority over elections. As demonstrated by the opinions in this case, the Constitution at times explicitly delegates power over elections to the states, but that power itself is limited by overriding provisions such as the Fourteenth Amendment.

Whatever the ultimate outcome, yesterday’s decision provides powerful proof that, like its immediate predecessor, the 2024 election will entail a historic level of judicial involvement and will undoubtedly require the courts to draw new lines between federal and state control over elections.

Ballard Spahr has an active election law practice. Burt M. Rublin and Matthew A. Morr served as counsel for Amici Curiae in the Colorado case, and Ballard represented clients, including local government, in many of cases arising out of the 2020 Election. For more information, contact Edward D. Rogers or Burt M. Rublin.

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