Former President Donald Trump on Wednesday appealed a decision made by Colorado's Supreme Court to remove him from the state's presidential primary ballot because of his role in the Jan. 6, 2021, attack on the U.S. Capitol. The filing comes one day after the former president appealed a decision made by Maine’s secretary of state that also bars him from appearing on that state’s primary ballot. Both rulings said his conduct violates a so-called insurrection clause in the U.S. Constitution.
The Colorado and Maine decisions only apply to these states.
Pressure is mounting on the nation’s high court to quickly take up these issues regarding the 2024 Republican presidential frontrunner ahead of the primaries in Maine and Colorado on March 5.
What does the U.S. Constitution say?
The so-called insurrection clause, Section 3 of the 14th Amendment, bars anyone who once took an oath to uphold the Constitution — like members of Congress, the military and federal and state offices — and "have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof" from holding public office.
Trump has not been explicitly charged with "insurrection" or "rebellion" in any of his four criminal cases.
The provision also says if someone is found to be disqualified to serve, Congress can overturn that decision with a two-thirds majority vote.
Section 3 of the 14th Amendment was ratified in 1868 during the Reconstruction era following the Civil War. It was intended to prevent those who held roles in the Confederacy from becoming a member of Congress or being elected to other offices.
What happened with the Maine decision?
Last week, Maine Secretary of State Shenna Bellows, a Democrat, determined that Trump incited an insurrection on Jan. 6, 2021, in an attempt to overturn the results of the 2020 presidential election, which disqualified him from holding office again under Section 3. In Maine, the secretary of state is responsible for preparing ballots for a presidential primary election.
By Maine law, Bellows had to make a decision after a group of former state lawmakers, which included some Republicans, petitioned her to remove Trump's name from the primary ballot, saying the former president should be disqualified under Section 3.
"I am mindful that no Secretary of State has ever deprived a presidential candidate of ballot access based on Section Three of the Fourteenth Amendment," Bellows wrote in her decision. "I am also mindful, however, that no presidential candidate has ever before engaged in insurrection."
What happened with the Colorado decision?
Before the Maine decision landed, the Colorado Supreme Court on Dec. 19 reversed a lower court judge’s ruling in a divided 4-3 decision. The state’s lower court concluded that Trump engaged in insurrection on Jan. 6, but said that as president, he was not an “officer of the United States,” as described in Section 3 of the 14th Amendment, and is therefore not disqualified from appearing on the state’s primary ballot.
The state's high court's majority opinion said, "We conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore, the Secretary may not list President Trump's name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him."
Both decisions in Maine and Colorado are paused in order to let the appeals process play out.
In Colorado, Trump's name will remain on the ballot until the U.S. Supreme Court takes action. The state’s Republican Party on Dec. 27 had also asked the U.S. Supreme Court to hear an appeal on the issue before Trump filed his own appeal on Wednesday.
Meanwhile, on Tuesday, Trump's legal team appealed to the Maine Superior Court — not the U.S. Supreme Court just yet. In the court filing, Trump's lawyers wrote that the decision was "the product of a process infected by bias and pervasive lack of due process."
By Maine law, the state's Superior Court has 20 days following Bellows's decision to issue its own ruling, which brings us to Jan. 17. Trump's legal team would have until Jan. 20 to appeal any decision by Maine's Superior Court. The issue would then go to the Maine Supreme Judicial Court, and then to the U.S. Supreme Court. Trump's name will remain on the state primary ballot until a state judge takes up the issue.
If the U.S. Supreme Court decides to take action in either case, it would be the first time that the nation’s highest court could rule on Section 3 of the 14th Amendment. Some of the lingering legal questions around Section 3 are whether it applies to the U.S. presidency and whether the provision is self-executing, or if Congress needs to act in some way.