Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Supreme Court considered whether former President Donald Trump may appear on the Colorado Republican presidential primary ballot in 2024. A majority of the court held Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment to the U.S. Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot. The court stayed its ruling until Jan. 4, 2024, subject to any further appellate proceedings.
More than three months ago, a group of Colorado electors eligible to vote in the Republican presidential primary, both registered Republican and unaffiliated voters, filed a petition in the District Court for the City and County of Denver, asking the court to rule Trump may not appear on the Colorado Republican presidential primary ballot.
Invoking provisions of Colorado’s Uniform Election Code of 1992, the electors requested the district court prohibit Jena Griswold, in her official capacity as Colorado’s Secretary of State, from placing Trump’s name on the presidential primary ballot. They claimed Section 3 of the 14th Amendment to the U.S. Constitution disqualified Trump from seeking the presidency. They asserted he was ineligible under Section 3 because he engaged in insurrection on Jan. 6, 2021, after swearing an oath as President to support the U.S. Constitution.
After permitting Trump and the Colorado Republican State Central Committee to intervene in the action below, the district court conducted a five-day trial. The court found Trump engaged in insurrection as those terms are used in Section 3. But the district court concluded Section 3 doesn’t apply to the President. The court denied the petition to keep Trump off the presidential primary ballot.
The electors and Trump sought the state Supreme Court’s review of various rulings by the district court. The Colorado Supreme Court affirmed in part and reversed in part.
According to the per curiam opinion, the Colorado Supreme Court held:
- The Uniform Election Code allows the electors to challenge Trump’s status as a qualified candidate based on Section 3. The election code provides the electors their only viable means of litigating whether Trump is disqualified from holding office under Section 3.
- Congress doesn’t need to pass implementing legislation for Section 3’s disqualification provision to attach, and Section 3 is, in that sense, self-executing.
- Judicial review of Trump’s eligibility for office under Section 3 isn’t precluded by the political question doctrine.
- Section 3 encompasses the office of the presidency and someone who has taken an oath as president. On this point, the district court committed a reversible error.
- The district court didn’t abuse its discretion in admitting portions of Congress’s January 6 report into evidence at trial.
- The district court didn’t err in concluding the events at the U.S. Capitol on Jan. 6, 2021, constituted an “insurrection.”
- The district court didn’t err in concluding Trump “engaged in” that insurrection through his actions.
- Trump’s speech inciting the crowd that breached the U.S. Capitol on Jan. 6, 2021, wasn’t protected by the First Amendment.
Chief Justice Brian Boatright, Justice Carlos Samour and Justice Maria Berkenkotter dissented.
Boatright agreed with the majority that an action brought under section 1-1-113 of Colorado’s election code may examine whether a candidate is qualified for office under the U.S. Constitution. But he felt section 1-1-113 has a limited scope, and the claim at issue in this case exceeds that scope.
“The voters’ action to disqualify former President Donald J. Trump under Section Three of the Fourteenth Amendment presents uniquely complex questions that exceed the adjudicative competence of section 1-1-113’s expedited procedures,” wrote Boatright. “Simply put, section 1-1-113 was not enacted to decide whether a candidate engaged in insurrection. In my view, this cause of action should have been dismissed. Accordingly, I respectfully dissent.”
Samour felt the majority turned Section 3 on its head and held that it licenses states to supersede the federal government.
“Respectfully, they have it backwards,” wrote Samour.
Samour dissented because no federal legislation currently exists to power Section 3 and propel it into action, because Trump hasn’t been charged under Section 2383 and because there is no authority permitting Colorado state courts to use Colorado’s Election Code as an engine to provide the necessary thrust to effectuate Section 3.
In Berkenkotter’s view, the majority construed the court’s authority too broadly. According to her opinion, its approach overlooked some of Article 12 of the election code’s plain language and is at odds with the historical application of section 1-1-113, which up until now has been limited to challenges involving relatively straightforward issues, like whether a candidate meets a residency requirement for a school board election. She noted the majority’s approach seemed to have no discernible limits.
“I conclude that the General Assembly has not granted courts the authority the district court exercised in this case and that the court, accordingly, erred in denying President Trump’s motion to dismiss,” wrote Berkenkotter.
Petitioners and cross-appellees Norma Anderson, Michelle Priola, Claudine Cmarada, Krista Kafer, Kathi Wright and Christopher Castilian were represented by Tierney Lawrence Stiles LLC, Olson Grimsley Kawanabe Hinchcliff & Murray LLC and KBN Law, LLC. Appellee and Colorado Secretary of State Jena Griswold was represented by Colorado Attorney General Phil Weiser, Senior Assistant AG Michael Kotlarczyk and Deputy AG Jennifer Sullivan. Intervenor-appellee and unincorporated association the Colorado Republican State Central Committee was represented by Melito Law LLC and Podoll & Podoll, P.C. Intervenor-appellee, cross-appellant and former President Donald Trump was represented by Gessler Blue LLC. Amicus curiae included various individuals, Colorado Common Cause, the Constitutional Accountability Center, Free Speech for People, the Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee and the Republican parties of Kansas, Delaware, Michigan, North Dakota, Oklahoma, West Virginia, Wisconsin, Wyoming, Delaware, Georgia, Nebraska, Maine, Idaho and Rhode Island. Also listed as amici are the states of Indiana, West Virginia, Alabama, Alaska, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and Wyoming.