A Colorado Supreme Court opinion barring former President Donald Trump from the state’s 2024 ballot erred in saying Trump engaged in an insurrection and was an overreach of the state court’s authority, according to a petition filed with the U.S. Supreme Court.
Attorneys for the former president filed the petition with the high court on Wednesday. The petition for a writ of certiorari calls on the justices to reverse the Colorado opinion, which ordered the removal of Trump from the presidential primary ballot in a 4-3 decision based on provisions of the Constitution’s 14th Amendment.
“The court should grant certiorari to consider this question of paramount importance, summarily reverse the Colorado Supreme Court’s ruling and return the right to vote for their candidate of choice to the voters,” the petition states.
The attorneys argue that the Colorado justices overreached their authority because the determination of eligibility for presidential candidates should be reserved for Congress, not state courts. In addition, the president is not “an officer of the United States” and so is not bound by section 3 of the 14th Amendment. That section says those who engaged in an insurrection against the nation are ineligible to serve as an officer of the United States.
The petition goes on to say that the violent events that unfolded at the Capitol on Jan. 6, 2021, delayed the counting of electors to determine the official outcome of the 2020 presidential election and that it was not an insurrection.
“In the context of the history of violent American political protests, January 6 was not insurrection and thus no justification for invoking section 3,” the petition says. “Moreover, nothing that President Trump did ‘engaged’ in ‘insurrection.’ President Trump never told his supporters to enter the Capitol, either in his speech at the Ellipse or in any of his statements or communications before or during the events at the Capitol.”
In recent months, more than 60 lawsuits or administrative challenges have been advanced to keep the former president off the primary or general-election ballots in multiple states. Colorado and Maine have taken steps to remove Trump from their ballots, while courts in Michigan, Minnesota and West Virginia have rejected such legal challenges. The Colorado Republican Party has also petitioned the U.S. Supreme Court to review the state Supreme Court's decision.
Kevin Wagner, an associate dean and political science professor at Florida Atlantic University, said that not all of the former president’s arguments were well grounded. Wagner acknowledged, though, that the “Insurrection Clause” has had little application in the past.
“I would say that the argument that states cannot interpret the Constitution is not particularly strong,” he said in an email to Legal Newsline. “Federal and state courts and officials apply the Constitution regularly. Where there is concurrent jurisdiction and a conflict the federal government and the U.S. Supreme Court will prevail under the Supremacy Clause.”
The debate over whether Trump engaged in an insurrection represents a more difficult issue, according to Wagner.
“At the time of the amendment, the insurrection was the Civil War, so everyone understood it,” he said. “What it means today will likely need some judicial interpretation.”
Trump’s attorneys are also challenging an administrative decision by Maine Secretary of State Shenna Bellows that found the former president ineligible to run, based on similar 14th Amendment concerns raised by Colorado’s high court. That legal challenge was filed Jan. 2 in Maine’s Superior Court system.
The civil lawsuit labels Bellows “a biased decision maker” who should have recused herself from taking part in the primary ballot eligibility review. The complaint also alleges Maine had no authority to consider federal constitutional issues presented by voters and that Bellows’ actions were arbitrary, capricious and illegal.
But Bellows defended her actions in a statement emailed to Legal Newsline.
“Under Maine law, an appeal of the decision to the Maine Superior Court is the next step in the process laid out in the Maine election law,” she said. “I have confidence in my decision and in the rule of law. Everyone who serves in government has a duty and obligation to uphold the Constitution first above all.”
UPDATE: Just three days after the Trump campaign filed its appeal to the Colorado state court's decision, the U.S. Supreme Court said it would hear the case on Feb. 8. Oral arguments are slated to take place just shy of one month from the Colorado Republican primary on March 5.
Trump spokesperson Steven Cheung applauded the high court and said that efforts to ban the former president from the ballot are "part of a well-funded effort by left-wing political activists hell-bent on stopping the lawful re-election of President Trump this November, even if it means disenfranchising voters," according to Reuters.
The Supreme Court did not respond to a separate filing by the Colorado GOP, nor has it announced if it will hear Trump's appeal to the Maine state court decision that also bars him from the primary ballot.