Photo: Krista Kafer, a Republican commentator and one of the plaintiffs in a case seeking to bar former President Donald Trump from the 2024 ballot, speaks to the press outside the U.S. Supreme Court following oral arguments in the case on February 8, 2024. (Chase Woodruff/Colorado Newsline)
This story by Chase Woodruff appeared on Colorado Newsline on March 4, 2024.
Former President Donald Trump must be placed on Colorado’s 2024 ballot, the U.S. Supreme Court ruled unanimously on Monday, striking down a first-of-its-kind holding by the Colorado Supreme Court that the Republican front-runner is disqualified from office under a Civil War-era insurrection clause.
“Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 [of the 14th Amendment] against federal officeholders and candidates, we reverse,” justices wrote in the unsigned, “per curiam” opinion.
The ruling — which comes just one day before Colorado holds its presidential primary election on Super Tuesday, March 5 — brings an end to a six-month legal saga that began in Denver District Court and sent shockwaves through American politics during its fast-tracked ascent through the judicial system.
Six Republican and unaffiliated Colorado voters, backed by the nonprofit Citizens for Responsibility and Ethics in Washington, filed a lawsuit last September alleging that Trump’s actions in relation to the Jan. 6 attack on the U.S. Capitol disqualify him from office under Section 3. The clause prohibits a person who “engaged in insurrection” after taking an oath to support the Constitution from holding office again.
In a 4-3 majority opinion issued December 19, the Colorado Supreme Court sided with the plaintiffs, ordering Colorado Secretary of State Jena Griswold not to certify Trump’s candidacy for the state’s 2024 Republican presidential primary. The historic ruling, which drew furious condemnations from leading Republicans and even some centrist and liberal commentators, set the stage for similar decisions by Maine’s secretary of state later in December and an Illinois judge last week.
Monday’s ruling will likely result in the reversal of those decisions and spell an end to similar Section 3 challenges in at least a dozen other states, with the justices citing the “disruption” and “chaos” that would ensue if states were allowed to enforce the clause against federal candidates.
Trump said in a radio interview Monday morning that he was “very honored by a nine-to-nothing vote.”
Representatives from CREW said in a press call they were “still digesting” the particulars of the court’s ruling, but faulted the court for taking what they called a “procedural off-ramp” to allow Trump on the ballot.
“The Supreme Court removed an enforcement mechanism, and in letting Trump back on the ballot, they failed to meet the moment,” CREW president Noah Bookbinder said in a statement. “But it is now clear that Trump led the Jan. 6 insurrection, and it will be up to the American people to ensure accountability.”
The Colorado ruling never took effect, because the justices stayed their order pending U.S. Supreme Court review, and Trump still appeared on GOP primary ballots, which were mailed to Colorado voters beginning February 12. Monday’s U.S. Supreme Court ruling ensures that all votes cast by Colorado primary voters for Trump — the overwhelming favorite for his party’s nomination following the withdrawal of nearly all of his major rivals from the race — will be counted.
“I am disappointed in the U.S. Supreme Court’s decision stripping states of the authority to enforce Section 3 of the 14th Amendment for federal candidates,” Griswold wrote on X following the ruling. “Colorado should be able to bar oath-breaking insurrections from our ballot.”
“In accordance with this decision, Donald Trump is an eligible candidate on Colorado’s 2024 Presidential Primary,” Griswold said.
Though all nine U.S. Supreme Court justices agreed on the outcome of the case, the opinions released Monday show a divide over how far the court should have gone to settle key issues relating to the enforcement of Section 3.
In his appeal to the U.S. Supreme Court, Trump’s attorneys challenged the Colorado ruling on a variety of grounds. In addition to arguing that enforcement of Section 3 required an act of Congress, Trump’s team put forward a theory that Section 3’s reference to “officer(s) of the United States” did not include the presidency, and disputed claims that the Jan. 6 attack was an “insurrection” and Trump “engaged” in it.
Monday’s ruling is silent on the latter two questions, an outcome that the plaintiffs’ attorneys sought to portray as a victory on Monday.
“The Supreme Court was given the opportunity to exonerate Donald Trump for engaging in insurrection. Donald Trump asked them to exonerate him for engaging in insurrection,” Bookbinder said in a press call. “And they did not do that. There is not a single sentence from a single justice, in that opinion that came out today, taking substantive issue with the findings of the Colorado Supreme Court that Donald Trump engaged in insurrection.”
But five Republican-appointed justices — Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — appeared to back strict limitations on how the insurrection clause can be enforced. Citing a precedent known as Griffin’s case, an 1869 circuit court opinion authored by Chief Justice Salmon P. Chase, they wrote that it was “necessary” for Congress to enact enforcing legislation pursuant to Section 5 of the 14th Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
“The Constitution empowers Congress to prescribe how those determinations should be made,” the ruling says, referring to the Enforcement Act of 1870 and Section 2383 of the U.S. Code, a statute prescribing a criminal penalty for “rebellion or insurrection,” as appropriate uses of the Section 5 power.
That interpretation appears to rule out the possibility that Section 3 could be enforced by federal courts or by Congress through other means, such as by refusing to seat insurrectionist members or declining to certify the election of an insurrectionist president. In a separate opinion, Justice Amy Coney Barrett wrote that she did not join the other conservative justices in deciding that issue. And in a third opinion, the three Democratic-appointed members of the court — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — called the majority’s Section 5 findings “as inadequately supported as they are gratuitous.”
“Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oath-breaking insurrectionist from becoming President,” the liberal justices wrote. “Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision.”
Following the 14th Amendment’s ratification in 1868, Section 3 was aggressively enforced against hundreds of ex-Confederates for a period of several years. But a series of amnesty measures approved by Congress largely rendered it moot by 1871, and it was enforced in only a handful of cases in the ensuing 150 years.
The unprecedented events of Jan. 6, 2021, when a pro-Trump mob stormed the U.S. Capitol to disrupt the certification of President Joe Biden’s victory in the 2020 election, revived interest in the clause among legal scholars. In another case brought by CREW in 2022, a New Mexico court removed from office a GOP county commissioner who had participated in the attack. Monday’s ruling bars states from enforcing Section 3 against candidates for president or other federal offices, but does not preclude them from enforcing it against state and local officeholders.
Colorado was singled out by CREW as a “good venue” for a 14th Amendment case against Trump because of provisions in its election code requiring only candidates who are eligible to assume office to be placed on the ballot. Challenges in several other states, including Minnesota and Michigan, had been rejected by the courts.
Trump was indicted last year by federal prosecutors who allege that his “pervasive and destabilizing lies” about the 2020 election “targeted a bedrock function of the United States federal government.” That case is still pending, as is a separate election interference case against Trump in Fulton County, Georgia.
In briefs and oral arguments before the U.S. Supreme Court last month, the Colorado plaintiffs had argued that Section 3, like many other measures in the Constitution, is “self-executing,” and that Griffin’s case was wrongly decided. Donald Sherman, CREW’s executive vice president and chief counsel, said Monday that the majority’s interpretation contradicts the consensus view of historians and constitutional scholars.
“The text of Section 3 does not say any of this,” Sherman said. “The majority opinion is reading words into this provision that clearly are not there.”
Proponents of Trump’s disqualification said they will closely scrutinize the court’s opinion and evaluate other ways that Section 3 could be enforced.
“We certainly expect there will be interest in Congress as to whether there is a practical path forward for congressional action,” Bookbinder said. “And we’ll be looking into what other avenues there might be, whether it’s rooted in the 14th Amendment or otherwise, to try to protect democracy from those who have attacked it.”