Trump Disqualified From Colorado Primary Ballot

On Tuesday, December 19, 2023, the Colorado Supreme Court ruled that Donald J. Trump is disqualified from holding the office of President and cannot be listed on Colorado’s primary ballot in 2024.

Colorado electors eligible to vote in the Republican presidential primary filed a petition in the Denver District Court seeking a ruling that former President Donald Trump may not appear on the Colorado Republican presidential primary ballot. The electors cited Colorado’s Uniform Election Code of 1992 in an effort to prohibit Jena Griswold, Colorado’s Secretary of State, from placing Trump on the ballot. These electors asserted that Section Three of the Fourteenth Amendment to the U.S. Constitution made Trump ineligible to serve since he engaged in insurrection on January 6, 2021, after swearing an oath as President to support the U.S Constitution.

The Denver District Court found that Trump engaged in insurrection according to the terms used in Section Three. However, the court concluded that Section Three does not apply to the President. Thus, the petition to keep Trump off the ballot was denied. The electors appealed to the Colorado Supreme Court. The Colorado Supreme Court held, in part, that (1) Section Three is self-executing and does not require Congress to implement legislation for the disqualification provision to attach; (2) judicial review of Trump’s eligibility under Section Three is not precluded by the political question doctrine; (3) Section Three encompasses the office of the Presidency and someone who has taken an oath as President; (4) the January 6, 2021 riot at the Capitol constituted an “insurrection;” (5) President Trump “engaged in” that insurrection through his personal actions; and (6) President Trump’s speech inciting the crowd that breached the Capitol on January 6, 2021, was not protected by the First Amendment.

The Colorado Supreme Court ruled that “President Trump is disqualified form holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot.” The court acknowledged that the “case presents several issues of first impression” and, in order to maintain the status quo pending any review by the U.S. Supreme Court, “we stay our ruling until January 4, 2024 (the day before the Secretary’s deadline to certify the content of the presidential primary ballot).” In effect, if Trump appeals the decision to the U.S. Supreme Court before January 4th, the stay will remain in place and Trump will be included on the 2024 presidential primary ballot in Colorado.

Three Colorado Supreme Court Justices dissented from the opinion. Chief Justice Boatright dissented on the grounds that the claim at issue exceeds the limited scope of the Uniform Election Code. “Simply put, [the Uniform Election Code] was not enacted to decide whether a candidate engaged in insurrection. In my view, this cause of action should have been dismissed.”

Justice Samour dissented on the grounds that “[t]he decision to bar former President Donald J. Trump. . . from Colorado’s presidential primary ballot flies in the face of the due process doctrine.” More specifically, Justice Samour took issue with the majority’s ruling that Section Three of the Fourteenth Amendment is self-executing. “Because no federal legislation currently exists to power Section Three and propel it into action, because President Trump has not been charged under [18 U.S.C. § 2383], and because there is absolutely no authority permitting Colorado state courts to use Colorado’s Election Code as an engine to provide the necessary thrust to effectuate Section Three, I respectfully dissent.”

Justice Berkenkotter dissented because “the majority construes the court’s authority too broadly. . . Plus the majority’s approach seems to have no discernible limits.” Justice Berkenkotter wrote that the majority’s approach “overlooks some of part 12 of the Election Code’s plain language and is at odds with the historical application of section 1-1-113, C.R.S. (2023), which up until now has been limited to challenges involving relatively straightforward issues, like whether a candidate meets a residency requirement for a school board election.”

Lawsuits in more than 12 states have been filed seeking to block Trump from ballots, but seven of them have failed for different reasons.

Additional Reading

Trump barred from Colorado primary ballot for role in US Capitol attack, Reuters (December 20, 2023)

Anderson v. Griswold (2023 CO 63)

Sections 3 and 4 of the Fourteenth Amendment to the U.S. Constitution

Photo Credit: lev radin /