By Alan Feuer, Maggie Haberman and Adam Liptak
It has been clear for months that politics and the law were going to bump into one another in next year’s presidential race, with Donald Trump playing a dual starring role: criminal defendant and a candidate for the country’s highest office.
This week, that awkward bump turned into a head-on collision. It is now clear that the courts — especially the U.S. Supreme Court — could shape the contours of the election in extraordinary and previously unimaginable ways.
In case you missed it, there was big news: On Tuesday, Colorado’s Supreme Court ruled that Trump is disqualified from holding office again because of his actions leading up to Jan. 6.
The Colorado ruling is based on a provision of the 14th Amendment, adopted after the Civil War, which bars people who have engaged in insurrection from holding office. Trump’s campaign immediately said it would appeal to the U.S. Supreme Court.
Here is a look at the ruling and how it could affect the presidential election, with the Iowa caucus kicking off the nomination process in less than a month.
What was the ruling?
The ruling directs the Colorado secretary of state to exclude Trump’s name from the state’s Republican primary ballot. It does not address the general election.
“A majority of the court holds that President Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment to the United States Constitution,” the justices wrote. “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.”
“We do not reach these conclusions lightly,” a four-justice majority wrote, with three justices dissenting. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
What’s in Section 3 of the 14th Amendment?
Section 3 of the 14th Amendment says:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
The provision was written after the Civil War to prevent members of the Confederacy from holding office. “This is a provision of the Constitution that we just didn’t expect to start using again,” said Jessica Levinson, a professor at Loyola Law School.
The Colorado case hinged on several questions:
— Was it an insurrection when Trump supporters stormed the Capitol on Jan. 6, 2021, trying to stop the certification of the 2020 election?
— If so, did Trump engage in that insurrection through his messages to his supporters beforehand, his speech that morning and his Twitter posts during the attack?
— Do courts have the authority to enforce Section 3 of the 14th Amendment without congressional action?
— And does Section 3 apply to the presidency?
The majority of the Colorado justices concluded that the answers to each of those questions was yes. The three dissenting Colorado justices disagreed on procedural grounds, concluding that the court had overstepped its authority.
“Even if we are convinced that a candidate committed horrible acts in the past — dare I say, engaged in insurrection — there must be procedural due process before we can declare that individual disqualified from holding public office,” Justice Carlos Samour Jr. wrote in his dissent.
How will the Supreme Court rule?
Trump has said he will immediately appeal the ruling to the U.S. Supreme Court. It could take some time for the justices to grapple with the case’s many interlocking legal issues, which are novel, complex and extraordinarily consequential.
The justices, who are also expected to rule on other legal cases that involve Trump in the run-up to the election, may be reluctant to withdraw from the voters the decision of how to assess Trump’s conduct.
The U.S. Supreme Court has a 6-3 conservative majority, with three justices appointed by Trump himself, and it is already under extraordinary political pressure and scrutiny.
But while the court’s current majority has certainly favored any number of staunchly conservative policies, it has shown less of an appetite for supporting Trump’s attempts to bend the powers of the presidency to his benefit or to monkey with the mechanics of the democratic process.
How will this affect the Republican primaries?
Trump has perfected a playbook of victimhood, raising cash off each of his indictments and encouraging Republican officials to back him. That’s exactly what happened Tuesday, with Trump’s rivals quickly rushing to his defense.
“The Left invokes ‘democracy’ to justify its use of power, even if it means abusing judicial power to remove a candidate from the ballot based on spurious legal grounds. SCOTUS should reverse,” Gov. Ron DeSantis of Florida said in a social media post.
Chris Christie, the former governor of New Jersey, said that voters, not the courts, should decide whether he is president. Nikki Haley, the former governor of South Carolina, made a similar statement. Vivek Ramaswamy, the most vocally pro-Trump of any of the candidates this cycle, said he would withdraw from the Colorado ballot unless Trump is restored.
Trump has repeatedly grouped all of the legal cases against him into what he has called a “witch hunt.” He and his allies are already folding the Colorado ruling into that same narrative.
“REMOVED FROM THE BALLOT — FIGHT BACK!” read the subject line of a fundraising email from Trump last night.
What the polls are saying
Nearly a quarter of Trump’s own supporters believe that he should not be the Republican Party’s nominee for president next year if he is found guilty of a crime, according to a New York Times/Siena College poll.
Another 20% of those who identified themselves as Trump supporters went so far as to say that he should go to prison if he is convicted in the federal case in which he stands accused of plotting to overturn the 2020 election. And 23% of his supporters said they believe that he has committed “serious federal crimes,” up from 11% in July.
The poll was conducted before the Colorado Supreme Court ruling.