Republican presidential candidate and former U.S. president Donald Trump attends a campaign event in Waterloo, Iowa, on Dec. 19.SCOTT MORGAN/Reuters
Colorado’s top court has ruled that Donald Trump is disqualified from holding the office of the presidency, a ruling that presages an anticipated legal battle before the U.S. Supreme Court with weighty constitutional and political consequences.
In its decision Tuesday, the Colorado Supreme Court, whose justices were all nominated by Democratic governors, upheld a lower-court ruling that Mr. Trump engaged in insurrection on Jan. 6, 2021, when he delivered a speech before crowds broke into the U.S. Capitol building in Washington.
The U.S. Constitution bars insurrectionists from seeking federal office.
“President Trump did not merely incite the insurrection,” the court ruled in its 4-3 decision. “Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President [Mike] Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”
The decision could strip Mr. Trump from the Colorado presidential primary ballot, although even that is unlikely since an appeal is expected. To give time for the U.S. Supreme Court to conduct its own review, the Colorado court stayed its own ruling until Jan. 4, 2024, one day before the Colorado deadline to certify its Republican presidential primary ballot.
Still, the ruling thrusts to the national stage a question about Mr. Trump’s eligibility for office, less than a year from the next U.S. presidential election.
“We are mindful of the magnitude and weight of the questions now before us,” the Colorado court ruled. But, it wrote, “we are also cognizant that we travel in uncharted territory, and that this case presents several issues of first impression.”
The Colorado decision applies only to ballots in that state, although any appeal will elevate the importance of the legal questions it has raised.
In a statement, Mr. Trump’s campaign pledged to “swiftly file an appeal” against what campaign spokesperson Steven Cheung called a “deeply undemocratic decision.”
The Colorado ruling “decided a major legal question, teed the case up for a major ruling, but left the door open for another court (in this case the U.S. Supreme Court) to have a final say,” said Douglas Spencer, an associate professor at the University of Colorado who specializes in election law.
The ruling has relatively little political consequence in Colorado, where Mr. Trump lost in the past two elections. But the state has legal provisions that allow concerned voters – rather than solely competing candidates – to file suit in such a case, which made Colorado an important venue for what Prof. Spencer called a “co-ordinated effort” to seek a definitive ruling on the former president’s eligibility.
“All the states would like some clarity,” he added. “We don’t want a patchwork on who is qualified or not.”
Republican political leaders and allies of Mr. Trump condemned the ruling, which Karoline Leavitt, spokeswoman for Make America Great Again Inc., a campaign finance organization that supports the former president, called “much more than a political attack on President Donald Trump – it’s an attack on the Republican Party and an attack on the very fabric of America.”
New York Congresswoman Elise Stefanik derided the Colorado judges who voted to disqualify Mr. Trump as “partisan Democrat operatives.” She argued the move would only “strengthen President Trump’s winning campaign.”
Speaker Mike Johnson said he was confident the Supreme Court “will set aside this reckless decision.”
“Regardless of political affiliation, every citizen registered to vote should not be denied the right to support our former president,” he said in a statement.
The U.S. Supreme Court currently has a six-to-three conservative majority, including three judges appointed by Mr. Trump.
Among those dissenting to the Colorado ruling was that court’s own chief justice, Brian Boatright, who said his opinion “that this is an inadequate cause of action is dictated by the facts of this case, particularly the absence of a criminal conviction for an insurrection-related offence.”
The Colorado court heard just five days of evidence on the case.
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“An expedited hearing absent any discovery procedures and with a preponderance of the evidence standard is not the appropriate means for adjudicating a matter of this magnitude,” Chief Justice Boatright wrote.
Sage Naumann, a conservative strategist and commentator in Colorado, called it “a dangerous precedent to allow state supreme courts to kick people off the ballot when there is an absence of a criminal conviction.”
Mr. Naumann strongly dislikes Mr. Trump. But he criticized what he called a “short-sighted, ends-justify-the-means approach” to the law. “What are we going to see in red states when these kinds of things are brought forward in the future?” he asked.
Dave Williams, who chairs the Colorado Republican Party, was unsparing in his response to the ruling: “Thank God the U.S. Supreme Court will get the final say against the out-of-control radicals in charge of Colorado who would rather spit on our Constitution than let the people decide which candidates should represent them in a free and fair election.”
The Colorado case was argued on the basis of the 14th Amendment to the U.S. Constitution, under which elected leaders who have pledged to support the Constitution shall be barred from office if they “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The 14th Amendment argument was first raised earlier this year by two conservative legal scholars, William Baude and Michael Stokes Paulsen. The 1868 clause barring former government officials who “have engaged in insurrection or rebellion” against the U.S. from seeking office again was intended to exclude former Confederate leaders from returning to power after the Civil War. But Prof. Baude and Prof. Paulsen contended that the wording was sufficiently broad to apply to anyone in a similar situation.
“It disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election,” the pair, both members of the right-wing Federalist Society, wrote in an article for the University of Pennsylvania Law Review.
In their estimation, the amendment is “self-executing,” meaning any election officials with the power to bar Mr. Trump from the ballot would be obligated to do so. But so far, state secretaries of state and others who manage elections have declined. Instead, various liberal activist groups have launched court challenges seeking to force Mr. Trump off the ballot.
A series of previous legal rulings on the 14th Amendment have gone in Mr. Trump’s favour, including one by the Minnesota Supreme Court which held that courts do not have the power to bar candidates from primary elections. In Michigan, a court ruled against a group trying to have Mr. Trump disqualified and also blocked the state secretary of state from determining any candidate’s ballot access.
The Michigan ruling, however, is under appeal to that state’s supreme court. In Minnesota, the court ruling applies only to the primary, allowing the litigants to try again ahead of the general election.
Laurence Tribe, a Harvard constitutional law expert, said he expected the U.S. Supreme Court to swiftly step in after the Colorado ruling. Prof. Tribe, who has long argued that Mr. Trump is a threat to constitutional democracy, contends that he should be barred from office by the 14th Amendment.
“Trump will seek and immediately get Supreme Court review,” Prof. Tribe wrote on X, formerly Twitter.
Mr. Trump currently faces multiple criminal indictments over his efforts to overturn the election, stashing classified documents at his house and refusing to give them back, and paying hush money to a porn star. There is virtually no precedent for his legal or constitutional travails in the U.S.
At a campaign fundraiser in the Washington suburb of Bethesda Tuesday evening, President Joe Biden accused Mr. Trump of authoritarian tendencies.
“The greatest threat Trump poses is to our democracy,” he said, before describing his Republican rival as an “old pal” of Russia’s Vladimir Putin and likening Mr. Trump’s rhetoric to “Germany in the 1930s.”