Charlie Neibergall/AP
A divided Colorado Supreme Court has declared former president Donald Trump ineligible for the White House under the US Constitution’s insurrection clause and removed him from the state’s presidential primary ballot.
The decision sets up a likely showdown in the nation’s highest court to decide whether the front-runner for the Republican nomination can remain in the race.
Coming from a court whose justices were all appointed by Democratic governors, the decision marks the first time in history that Section 3 of the 14th Amendment has been used to disqualify a presidential candidate.
“A majority of the court holds that Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment,” the court wrote in its 4-3 decision.
Colorado’s highest court overturned a ruling from a district court judge who found that Mr Trump incited an insurrection for his role in the January 6, 2021 attack on the Capitol, but said he could not be barred from the ballot because it was unclear that the provision was intended to cover the presidency.
The court stayed its decision until January 4, or until the US Supreme Court rules on the case. Colorado officials say the issue must be settled by January 5, the deadline for the state to print its presidential primary ballots.
“We do not reach these conclusions lightly,” wrote the court’s majority.
“We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favour, and without being swayed by public reaction to the decisions that the law mandates we reach.”
Mr Trump’s attorneys had promised to appeal any disqualification immediately to the nation’s highest court, which has the final say about constitutional matters.
Mr Trump’s legal spokeswoman Alina Habba said in a statement on Tuesday night: “This ruling, issued by the Colorado Supreme Court, attacks the very heart of this nation’s democracy.
“It will not stand, and we trust that the Supreme Court will reverse this unconstitutional order.”
Mr Trump did not mention the decision during a rally on Tuesday evening in Waterloo, Iowa, but his campaign sent out a fundraising email citing what it called a “tyrannical ruling”.
Republican National Committee (RNC) chairwoman Ronna McDaniel labelled the decision “Election interference” and said the RNC’s legal team intends to help Mr Trump fight the ruling.
Mr Trump lost Colorado by 13 percentage points in 2020 and does not need the state to win next year’s presidential election.
But the danger for the former president is that more courts and election officials will follow Colorado’s lead and exclude Mr Trump from must-win states.
Dozens of lawsuits have been filed nationally to disqualify Mr Trump under Section 3, which was designed to keep former Confederates from returning to government after the Civil War.
It bars from office anyone who swore an oath to “support” the Constitution and then “engaged in insurrection or rebellion” against it, and has been used only a handful of times since the decade after the Civil War.
The Colorado case is the first where the plaintiffs succeeded. After a week-long hearing in November, District Judge Sarah B Wallace found that Mr Trump indeed had “engaged in insurrection” by inciting the January 6 attack on the Capitol, and her ruling that kept him on the ballot was a fairly technical one.
Mr Trump’s attorneys convinced Ms Wallace that, because the language in Section 3 refers to “officers of the United States” who take an oath to “support” the Constitution, it must not apply to the president, who is not included as an “officer of the United States” elsewhere in the document and whose oath is to “preserve, protect and defend” the Constitution.
The provision also says offices covered include senator, representative, electors of the president and vice president, and all others “under the United States”, but does not name the presidency.
The state’s highest court did not agree, siding with attorneys for six Colorado Republican and unaffiliated voters who argued that it was nonsensical to imagine that the framers of the amendment, fearful of former confederates returning to power, would bar them from low-level offices but not the highest one in the land.
The court’s majority opinion said: “President Trump asks us to hold that Section 3 disqualifies every oathbreaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land.
“Both results are inconsistent with the plain language and history of Section 3.”
The left-leaning group that brought the Colorado case, Citizens for Responsibility and Ethics in Washington, hailed the ruling.
“Our Constitution clearly states that those who violate their oath by attacking our democracy are barred from serving in government,” its president, Noah Bookbinder, said in a statement.
Mr Trump’s attorneys also had urged the Colorado high court to reverse Ms Wallace’s ruling that Mr Trump incited the January 6 attack.
His lawyers argued the then-president had simply been using his free speech rights and had not called for violence.
Mr Trump’s attorney Scott Gessler also argued the attack was more of a “riot” than an insurrection.
In the ruling issued on Tuesday, the court’s majority dismissed the arguments that Mr Trump was not responsible for his supporters’ violent attack, which was intended to halt Congress’ certification of the presidential vote.
They wrote: “President Trump… gave a speech in which he literally exhorted his supporters to fight at the Capitol.”
Colorado Supreme Court Justices Richard L Gabriel, Melissa Hart, Monica Marquez and William W Hood III ruled for the petitioners.
Chief Justice Brian D Boatright dissented, arguing the constitutional questions were too complex to be solved in a state hearing. Justices Maria E Berkenkotter and Carlos Samour also dissented.
“Our government cannot deprive someone of the right to hold public office without due process of law,” Mr Samour wrote in his dissent.
“Even if we are convinced that a candidate committed horrible acts in the past — dare I say, engaged in insurrection — there must be procedural due process before we can declare that individual disqualified from holding public office.”
Mr Trump’s allies rushed to his defence, slamming the decision as “un-American” and “insane” and part of a politically-motivated effort to destroy his candidacy.
House Republican Conference chair Elise Stefanik said in a statement: “Four partisan Democrat operatives on the Colorado Supreme Court think they get to decide for all Coloradans and Americans the next presidential election.”
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