Supreme Court Grants Review of Former President Trump’s Effort to Remain on Colorado Ballot

Many are wondering how a “long shot” lawsuit went from a state courtroom in Denver to the United States Supreme Court in a matter of months. On January 5, the Supreme Court agreed to review a ruling by a Colorado court that declared former President Donald Trump ineligible to be a presidential candidate for the upcoming 2024 election. Based on a Colorado trial court’s findings of the former President’s alleged role in the January 6, 2021 events at the U.S. Capitol, the state high court ruled that his name may not appear on the state’s ballot and that any votes recorded in writing for him may not be counted. The Justices issued an unsigned order granting a petition for review filed by the former President and heard oral argument on February 8.

In Trump v. Anderson, several Colorado voters sued to prevent the former President from being on the presidential ballot.

The central issue of the case deals with the interpretation of Section 3 of the Constitution’s Fourteenth Amendment. Section 3 disqualifies individuals who have been federal or state government officials that swore an oath to uphold the Constitution from taking any office “under the United States” if “he has engaged in insurrection.” This Section was enacted after the Civil War, targeting former officials who had supported the Confederacy.

The Colorado trial court found that Trump had engaged in “insurrection,” but held Section 3 to be inapplicable because the president is not an “officer” of the United States. The plaintiff voters then appealed, and the Colorado Supreme Court reversed, holding that the former President was disqualified under Section 3 from serving as president and that the Colorado secretary of state could not list him on the primary ballot or count votes cast for him. The state high court stayed its own mandate to allow time for the former President to seek review from the United States Supreme Court.

Former President Trump and the Colorado Republican Party, which had joined the suit, petitioned for certiorari and urged the Supreme Court to expedite review. Although the plaintiff voters and the Colorado secretary of state oppose the appeal on the merits, they agreed with the request to expedite review.

The Court dedicated the morning of Thursday, February 8, to hear oral arguments in the case, with most, if not all, of the Justices poised to hold that the Secretary of State acted outside the scope of his authority by excluding former President Trump from the state’s primary ballot and directing that any write in votes that may be cast in support of any elector for him be rejected.

Principal arguments were delivered by Jonathan Mitchell, former Texas Solicitor General, and Jason Murray of Denver. The Justices were heavily engaged in questioning counsel for both sides and appeared disinclined to address what standard may apply to determine conduct that may qualify as “insurrection” or engage in de novo review of the facts under the specific Colorado statute at issue in this case to make that determination. Justice Kagan, for example, pressed Murray about why a single state should be empowered, effectively, to decide a national election. Justice Jackson seemed to be searching for the most direct path out of the controversy, pressing Mitchell for an admission, helpful to his position, that the President is not an “officer” within the meaning of Section 3 of the Fourteenth Amendment. Several Justices raised the specter of other states moving to exclude opposition candidates on the basis of their perceived or apparent support of unlawful activities in the summer preceding the 2020 presidential election. Colorado Solicitor General Shannon Stevenson, arguing on the behalf of Colorado Secretary of State Griswold, attempted to assuage this concern by suggesting that the differences between each state’s ballots are a positive feature of the democratic process and emphasized that “Congress can act at any time” if this process has truly “run amok.” The Justices, with a striking degree of unanimity from the bench, seemed unpersuaded by the Solicitor General’s argument.

A full audio recording of the argument can be found here.

A decision is expected soon, given that Super Tuesday is on March 5, 2024. Indeed, there is precedent for the Court moving expeditiously in election-process dispositive cases: in 2000, the Court granted the petition for review in Bush v. Gore on December 9, heard arguments on December 11, and issued its decision on December 12. Stay tuned for Dykema’s client alert discussing the Court’s forthcoming opinion.

For more information, please contact Chantel Febus, James Azadian, David Schenck, Cory Webster, Christopher Sakauye, McKenna Crisp, Monika Harris, or Puja Valera.