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Trump appeals to the Supreme Court against his exclusion from Colorado primary ballot

The judges’ decision will affect the dozens of states where his participation in the presidential election is contested

donald trump
Donald Trump, on December 19, during an electoral event in Waterloo (Iowa).SCOTT MORGAN (REUTERS)
Miguel Jiménez

Donald Trump is the standout issue of the year at the U.S. Supreme Court. Although there are already several cases that affect him directly or indirectly, the appeal filed by the former president will define the electoral future of the United States. Trump has appealed before the nation’s highest court against his exclusion from the ballot in the Colorado primary, a decision that was made last month by the state Supreme Court. A similar and which also taken in Maine and which could yet be replicated by other states. There are more than 30 states where his participation is contested on the same grounds. The implication is simple: the nine justices who sit at the top of the US judicial system will have to decide whether Trump should be left out of the election for having participated in an insurrection, alluding to his attempts to alter the electoral outcome of the 2020 elections, which he lost to Joe Biden, and which led to the assault on the Capitol on January 6, 2021. In his appeal, Trump argues that it was not an insurrection. On Wednesday, the National Republican Senatorial Committee filed a brief with the Supreme Court in support of Trump’s appeal, The New York Times reported.

That Trump would file an was taken for granted. The former president and now candidate had until January 4 to go to the Supreme Court, which has a conservative supermajority of six judges, three of them appointed by Trump himself during his presidency. The appeal joins another one filed by the Colorado Republican Party. It also comes the day after another challenge filed by Trump in Maine against a decision by that state’s top election official to declare him ineligible for another term. In both states the primaries are to be held on March 5, known as Super Tuesday, the date on which more than a third of the delegates who will designate the Republican presidential candidate are chosen.

The Colorado Supreme Court decided by a four to three vote that Trump should have Section 3 of the 14th Amendment applied to him, declaring him ineligible for public office, and that his name should therefore not appear on the primary ballot ahead of the November 5, 2024 presidential election.

Said provision reads: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” It adds that this veto may be lifted by Congress through the vote of two-thirds of each Chamber. It is an amendment passed in 1868, three years after the end of the Civil War, that sought to prevent Confederate rebels from occupying positions of power.

The 43-page appeal filed with the U.S. Supreme Court shares the arguments of the one filed before the Maine Superior Court a day earlier. These sorts of appeals to the Supreme Court are formulated as questions and in this case the issue is tackled head-on: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?”

The lawyers argue before the Supreme Court that Trump did not take part in any insurrection. The public speeches he gave (including one on January 6, 2021 before the assault on the Capitol), are protected by freedom of speech, they say. Moreover, they consider that it is up to Congress and the electoral college to decide on the eligibility of a candidate.

“The question of eligibility to serve as President of the United States is properly reserved for Congress, not the state courts, to consider and decide,” the former president’s lawyers argue. “By considering the question of President Trump’s eligibility and barring him from the ballot, the Colorado Supreme Court arrogated Congress’ authority,” they explain.

The appeal also says the Colorado court was wrong in how it described President Trump’s role in the events of January 6, 2021. “It was not ‘insurrection’ and President Trump in no way ‘engaged’ in ‘insurrection.’”

Trump’s lawyers believe that the 14th Amendment prohibits certain persons from holding specific offices, but not from running for or being elected to them. They also point out that it cannot apply to the former president because that office is not expressly cited in the rule. They note that it lists offices in descending order, from senator to any civilian or military office, but never names the position exercised in the Oval Office. To expressly cite the position of electors or delegates who vote for the president, but not mention the president and to want to include the presidency as another “civilian office” defies common sense, they argue.

Furthermore, it applies to anyone who has participated in an insurrection while an “officer of the United States,” a term which, according to their interpretation, does not apply to the president. They point out that the term appears in three other constitutional provisions, all of which exclude the president from the phrase. Interestingly, in the New York fraud case, the former president’s lawyers were saying that he should move to federal court because Trump was an “officer of the United States” and the prosecution argued, successfully, to the contrary. Another argument of Trump’s legal team is that upon taking office he did not take “an oath to support the Constitution”; rather, the president’s oath is to “preserve, protect and defend” the Constitution.

Most courts that have ruled so far, including the state supreme courts in Michigan and Minnesota, find that the 14th Amendment is not preemptively applicable to bar Trump from running for office, and that this is a very strained interpretation. With those precedents and the Supreme Court’s conservative supermajority, Trump stands a good chance of winning the case.

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