The Colorado Republican Party has petitioned the U.S. Supreme Court to review and overturn a recent Colorado Supreme Court ruling that removed former President Donald Trump from the state’s 2024 ballot.
The state’s Republican State Central Committee filed its petition with the U.S. Supreme Court on Dec. 27. The petition argues that the Colorado justices’ opinion robs the state GOP of its ability to select a presidential candidate of its choice in violation of the First Amendment.
In addition, the petitioners’ attorneys allege that the office of the president is not subject to provisions of Section 3 of the 14th Amendment, which Colorado’s high court found disqualified Trump for his activities on Jan. 6, 2021. Section 3 is not “self-executing” in absence of a congressional authorization, the attorneys said.
“For the first time in American history, a former president has been disqualified from the ballot, a political party has been denied the opportunity to put forward the presidential candidate of its choice, and the voters have been denied the ability to choose their chief executive through the electoral process,” the petition states. “This unprecedented decision urgently merits this court’s review to prevent ‘the potential chaos wrought by an imprudent, unconstitutional and standardless system in which each state gets to adjudicate Section 3 disqualification cases on an ad hoc basis.’”
The legal battle over whether states can disqualify Trump coincides with primary elections beginning next month. Courts in a growing list of states, such as Michigan and West Virginia, have rejected moves to remove Trump from the presidential ballot.
“The Republicans’ arguments are weak, but that tells us nothing about what the Supreme Court will do,” James Gardner, a professor at the University of Buffalo School of Law, told Legal Newsline in an email.
Gardner discounted the First Amendment argument put forward by the Colorado GOP.
“The First Amendment argument is quite absurd,” he said. “No one has a free-speech right to vote for an ineligible candidate. Constitutional qualifications for office set the threshold for eligibility. The First Amendment doesn’t somehow invalidate candidate qualifications imposed by law.”
The high court will receive criticism no matter how it rules on the Colorado GOP petition, according to Gardner.
“Whatever it does will lower its standing in the public mind, either because it rules a major party candidate ineligible, even if the law so requires, or because it fails to do so when the law is clear,” he said.
Robert Jarvis, a law professor at Nova Southeastern University in Florida, said that unless Congress declares that Trump is eligible by a supermajority vote, it should be up to individual states to decide whether Trump merits a place on the ballots, given the decentralized nature of federal elections.
“I think the 14th Amendment makes it very clear that Trump is ineligible,” Jarvis, who will teach a class on the 2024 election this summer, told Legal Newsline. “[...] It seems to me that as a historical matter and as a matter of text, Section 3 does cover Trump's situation.”
Still, Jarvis expects the U.S. Supreme Court to rule that Trump is eligible to be on the ballot in all 50 states. To do otherwise could lead to a large part of the electorate feeling cheated, he said, potentially leading to political chaos if some red states retaliate by taking President Biden, the expected Democratic nominee, off their state ballots.
“To head off all that, the U.S. Supreme Court will say Trump is good to go,” Jarvis said.
The FBI and Denver Police are currently investigating threats made to state justices in the wake of their Dec. 19 opinion, and are "providing extra patrols around justice's residences in Denver," according to Fox News.
Multiple law enforcement agencies are working to keep the justices safe, depending on where they live, a Colorado State Patrol spokesman told Legal Newsline.
“Although we cannot comment on security measures being taken in response to the threats, of course we always have a presence to ensure the safety and security of all people at (state) Capitol buildings,” Sgt. Troy Kessler said.