The Colorado Supreme Court has declared Donald Trump ineligible to run for the presidency over his role in the 2021 Capitol attack. But can such a ruling stick? What are the arguments against it?
Immediately after the decision was handed down, the Trump team announced that they would appeal to the US Supreme Court, something that was to be anticipated.
According to the ruling, former President Trump violated the 14th Amendment of the U.S. Constitution by inciting the January 6, 2021, riot at the U.S. Capitol and therefore cannot run for president again in that state. The court reversed a lower court decision that found Trump engaged in insurrection but did not apply the insurrection clause to the presidency. The Colorado court maintains that the clause, which was added after the Civil War to prevent former Confederates from holding office, applies to anyone who has taken an oath to support the Constitution and then participated in or aided an insurrection against the United States, making it applicable to Trump and supporting their ruling.
The court concluded that Trump’s conduct on January 6 was “antithetical to the values and principles of our constitutional democracy” and that he forfeited his right to seek the highest office in the land.
While the case may appear to be clear to the Colorado Supreme Court, speculation about its validity abounds.
As with so much concerning the Trump presidency, the ruling marks an unprecedented event. The verdict makes Trump the first presidential candidate in US history to be deemed ineligible for the White House, just as he is the first to be convicted of felonies.
Colorado is not the only state to have to rule on the question of Trump’s eligibility for the 2024 election. Multiple lawsuits have been filed across several US states in efforts to disqualify him from running. Similar lawsuits have previously been dismissed by courts in Michigan, Florida and New Hampshire. The Minnesota Supreme Court has also rejected a disqualification case. In this regard, thus far Colorado is the outlier, but this ruling can influence other states to invoke similar rulings in competitive states that Trump needs to win.
The question is, are there realistic grounds for such a disqualification? And how is the conservative Supreme Court, with three Trump appointees, likely to rule?
Even if Colorado’s ruling survives Supreme Court review, it could be insignificant to the result of the presidential election. Colorado has only nine of the 270 electoral votes required to win the presidency and the state is already known as a democratic stronghold.
Did Trump commit “insurrection” on January 6? In the riot’s aftermath, the US House of Representatives impeached the then-president on a charge of “incitement of insurrection”. Had the US Senate voted to convict him, it would have had the option to take a second, simple-majority vote to bar him from ever serving in office again.
But that never happened: the Senate failed to reach the two-thirds majority required to convict Donald Trump, so there was no second vote. Hence, he was not convicted of insurrection.
Legal scholars have argued about the viability of the 14th Amendment, 3rd clause theory since it was brought up by William Baude and Michael Stokes Paulsen, who wrote in a law review paper that Section 3 is “self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress”.
But their theory has been challenged by many other experts. In an opinion piece for Bloomberg, liberal professor Noah Feldman wrote: “Donald Trump is manifestly unfit to be president. But it’s up to voters to block him. Magic words from the past won’t save us.” To be unfit is not synonymous with being ineligible.
Indeed, the very definition of “insurrection” has been parsed and debated. What exactly constitutes an “insurrection”? Were Trump’s words on January 6, 2021, merely an exhortation to his supporters to be patriotic? Do words without actions have consequences? Were Trump’s words from that podium covered under the First Amendment that guarantees free speech?
And the most cogent question of all, can Trump be disqualified on the charge of insurrection if he has not been convicted of insurrection?
On January 4, the Supreme Court will convene to review and rule. Until then, it’s all speculation—almost all of it partisan.
