Supreme Court keeps Trump on Colorado ballot, rejecting 14th Amendment push

CNN

By John Fritze, Devan Cole and Marshall Cohen, CNN

(CNN) — The Supreme Court ruled Monday that former President Donald Trump should appear on the ballot in Colorado in a decision that follows months of debate over whether the frontrunner for the GOP nomination violated the “insurrectionist clause” included in the 14th Amendment.

The opinion is a massive victory for Trump, vanquishing one of the many legal threats that have both plagued and animated his campaign against President Joe Biden. Though the decision has no impact on the four ongoing criminal cases that Trump is facing, including the federal election subversion case that covers some of the same conduct surrounding January 6, 2021.

The court was unanimous on the idea that Trump could not be unilaterally removed from the ballot.

But the justices were divided about how broadly the decision would sweep. A 5-4 majority said that no state could dump a federal candidate off any ballot – but four justices asserted that the court should have limited its opinion.

A five-justice majority – Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – wrote that states may not remove any federal officer from the ballot, especially the president, without Congress first passing legislation.

“We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency,” the opinion states.

“Nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates,” the majority added.

“BIG WIN FOR AMERICA!!!” Trump wrote on social media.

Four justices say the court has gone too far

Four of the justices disagreed on the scope of the decision.

With its opinion, the majority, “shuts the door on other potential means of federal enforcement,” Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson wrote in a concurring opinion. “We cannot join an opinion that decides momentous and difficult issues unnecessarily.”

Justice Amy Coney Barrett, writing alone in a concurring opinion, said that the case “does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”

The five conservatives went further than the other four were willing to go, said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

“First, the unsigned majority opinion holds that states can’t enforce Section 3 against any​ prospective federal officeholders, and not just against presidential candidates. Second, it also requires Congress to pass affirmative legislation to enforce Section 3 – cutting off other ways that the federal government might enforce that provision, e.g., by refusing to count electoral votes in favor of a candidate who violates Section 3. Justices Sotomayor, Kagan, Barrett and Jackson didn’t say they would’ve answered those questions differently; they just wouldn’t have answered them at all.”

SCOTUS does not discuss if Trump was an insurrectionist

The Supreme Court’s opinion doesn’t directly address whether Trump’s actions on January 6 qualified as an “insurrection” – skirting an issue that the courts in Colorado had wrestled with.

The unsigned opinion noted that lower courts in Colorado found Trump’s remarks before the attack on the US Capitol qualified as engaging in an insurrection within the meaning of the Constitution. But the US Supreme Court’s unsigned opinion didn’t return to that judgment.

Citizens for Responsibility and Ethics in Washington, the liberal group that filed the the lawsuit on behalf of Republican voters, criticized the Supreme Court ruling – but also said it was “in no way a win for Trump” because it declined to address the insurrection language from Colorado.

“The Supreme Court had the opportunity in this case to exonerate Trump, and they chose not to do so. Every court – or decision-making body – that has substantively examined the issue has determined that January 6th was an insurrection and that Donald Trump incited it. That remains true today,” the group said.

Colorado Secretary of State Jena Griswold told CNN’s Wolf Blitzer on the “Situation Room” Monday that while she was “glad” the Supreme Court issued a ruling ahead of Super Tuesday, she was disappointed in the decision.

“We believe that it’s up to Colorado or any state to determine whether to disqualify oath-breaking insurrectionists from our ballots. Ultimately, the United States Supreme Court disagreed,” Griswold said, adding that she would uphold the court’s decision.

Longshot bid to use 14th Amendment

The decision, which marked the first time the high court had weighed Trump’s actions on January 6, landed a day before Super Tuesday, when 16 states and territories, including Colorado, will hold nominating contests.

Using the 14th Amendment to derail Trump’s candidacy has always been seen as a legal longshot, but gained significant momentum with a win in Colorado’s top court in December, on its way to the US Supreme Court. Since that decision, Trump was also removed from the ballot in Maine and Illinois.

Courts and legal groups had for months debated the meaning of the post-Civil War provision at the center of the case, language that prohibits certain officials who took an oath to support the Constitution – and then engaged in insurrection – from serving in office again. The key provision, known as Section 3, was originally intended to keep former Confederates from reclaiming power.

But there was considerable uncertainty about the ban’s meaning and how it should be applied. Several conservative and liberal justices raised fundamental questions during the February 8 arguments about the fairness of Colorado effectively answering those questions for the rest of the nation.

Trump ridiculed the 14th Amendment lawsuits that have cropped up across the country and routinely complains that they are an unconstitutional affront pursued by Democrats who want to take him off the ballot rather than compete with him in November. His lawyers have argued it would be “un-American” to deprive voters of the opportunity to decide whether Trump should return to the White House.

Similar 14th Amendment challenges against Trump were rejected – all on procedural grounds – in Minnesota, Michigan, Massachusetts and Oregon. But in Colorado, a series of decisions by state courts led to a case that Trump ultimately appealed to the US Supreme Court in January.

A liberal-leaning watchdog group, Citizens for Responsibility and Ethics in Washington, filed the Colorado lawsuit in September on behalf of six Republican and independent voters, led by 91-year-old Norma Anderson, a trailblazing former Republican state legislator. They sued Colorado Secretary of State Jena Griswold and asked a judge to force her to remove Trump’s name from the state’s GOP primary ballot.

A state district judge in Colorado presided over a weeklong trial before concluding in November that even though Trump “engaged in an insurrection,” he should stay on the ballot because the ban didn’t apply to presidents. The Colorado Supreme Court, on a sharply divided 4-3 vote, affirmed the findings about Trump’s role in the US Capitol attack but said that the ban did, in fact, apply to presidents.

Only three states had removed Trump from the ballot because of the “insurrectionist ban.”

In addition to Colorado, the top election official in Maine reached a similar conclusion and determined that Trump is constitutionally barred from office. Trump is appealing, and a state court paused those proceedings while the Supreme Court dealt with the Colorado case.

An Illinois judge also removed Trump from the ballot in that state on the same January 6 grounds, though implementation of that ruling was paused pending any appeals.

It appeared during the Supreme Court’s arguments that Trump would win. The court’s conservatives most likely to be skeptical to the former president, like Roberts and Kavanaugh, lobbed relatively friendly questions at Trump’s lawyer, Jonathan Mitchell. When the attorney representing the voters stood up, questioning became far more pointed and insistent.

And it wasn’t only conservatives who appeared to be on the attack: Justices Kagan, nominated by President Barack Obama, and Jackson, a Biden pick, also zeroed in on some of the arguments that Trump had raised in his briefs.

“The question that you have to confront is why a single state should decide who gets to be president of the United States,” Kagan pressed Jason Murray, who was representing the challengers. “Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?”

This story has been updated with additional developments.

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