Trump Asks Supreme Court to Keep Him on Colorado Ballot

Greg Stohr and Chris Strohm
·4 min read
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(Bloomberg) -- Donald Trump urged the US Supreme Court to clear him to run for president in a case that’s become an historic test of the Constitution’s insurrection clause and has the potential to alter the course of the 2024 election.

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In a 59-page filing with the high court Thursday, Trump argued that the Colorado Supreme Court overstepped when it barred him from the ballot because of his efforts to overturn Joe Biden’s 2020 election win and his role in the Jan. 6 Capitol riot. With oral arguments set for Feb. 8, the Supreme Court will play a pivotal role in Trump’s bid to reclaim the White House.

“The Court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead,” Trump said in the filing.

A broad Supreme Court decision in his favor would doom the push to stop him from running by kicking him off state ballots, while a ruling against him would fuel that drive and raise new questions about the viability of his candidacy. Trump is the frontrunner for the Republican nomination.

The case is likely to be the most important election clash since Bush v. Gore, the divided Supreme Court ruling that sealed the 2000 presidential election for Republican George W. Bush after a five-week deadlock over Florida ballot recounts.

The Colorado Supreme Court said in a 4-3 ruling that Trump engaged in “overt, voluntary and direct participation” in an insurrection. The majority pointed to Trump’s unsupported claims that the election was stolen, his fiery Jan. 6 speech to a crowd that included armed people, and his demands before and during the Capitol riot that Vice President Mike Pence refuse to certify the results.

The case turns on Section 3 of the 14th Amendment, enacted shortly after the Civil War as the nation grappled with the status of former Confederate soldiers and leaders. The provision says a person who took an oath to support the Constitution and then “engaged in insurrection” is ineligible to hold office again.

The clause doesn’t say how it is to be enforced, though it gives Congress power to lift a ban with a two-thirds vote in each chamber.

Trump contends in his appeal that he didn’t engage in insurrection, that the clause doesn’t apply to the president and that Congress must pass legislation to be able to enforce disqualification under the 14th amendment. He is also making narrower arguments that would apply just to Colorado and not nationwide.

“Raising concerns about the integrity of the recent federal election and pointing to reports of fraud and irregularity is not an act of violence or a threat of force,” according to the filing. “And giving a passionate political speech and telling supporters to metaphorically ‘fight like hell’ for their beliefs is not insurrection either.”

Trump said the Supreme Court “cannot tolerate a regime that allows a candidate’s eligibility for office to hinge on a trial court’s assessment of dubious expert-witness testimony or claims that President Trump has powers of telepathy.”

Trump also said that the Constitution’s insurrection clause only prohibits individuals from holding office, not running for office or from being elected to office.

Trump’s filing came amid a flurry of briefs from other Republicans urging the court to let him appear on presidential ballots. A group of 179 lawmakers led by Senator Ted Cruz of Texas and House Majority Leader Steve Scalise of Louisiana told the justices that the Colorado ruling “tramples the prerogatives of members of Congress.”

Three election-law scholars from across the ideological spectrum urged the justices to issue a definitive ruling one way or another to avoid the risk of “political instability not seen since the Civil War” later on. Law professors Edward Foley and Richard Hasen and retired Republican election lawyer Benjamin Ginsberg said that if Trump wins election on Nov. 5 without a clear determination of his eligibility, members of Congress would probably move to disqualify him.

“The chance that there would be no clear answer come Inauguration Day 2025 — and that the country thereby would be thrown into a possibly catastrophic constitutional crisis — is disturbingly high,” the group argued, warning of the possibility of violence.

The Dec. 19 Colorado Supreme Court ruling was the first state decision to bar Trump from appearing the ballot this year after a state court in Denver was the first to conduct a full trial on the insurrection question. Maine’s secretary of state has also declared him ineligible, though a state judge has put that decision on hold until the Supreme Court rules in the Colorado case.

The case will test a Supreme Court that has been more polarizing than unifying in recent years, with the public increasingly viewing the justices as having political motivations. The court has a 6-3 conservative majority, including three members appointed by Trump.

The case is Trump v. Anderson, 23-719.

--With assistance from Sabrina Willmer.

(Adds more from Trump’s filing starting in the 10th paragraph.)

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