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  • Writer's pictureThe San Juan Daily Star

Trump asks Supreme Court to keep him on Colorado ballot

By Adam Liptak


Former President Donald Trump asked the U.S. Supreme Court on Wednesday to keep him on the primary ballot in Colorado, appealing an explosive ruling from the state Supreme Court declaring him ineligible based on his efforts to overturn the 2020 election that culminated in the Jan. 6, 2021, attack on the Capitol.


That ruling, Trump’s lawyers wrote, marked “the first time in the history of the United States that the judiciary has prevented voters from casting ballots for the leading major-party presidential candidate.”


Trump’s appeal adds to the growing pressure on the U.S. Supreme Court to act, given the number of challenges to Trump’s eligibility and the need for a nationwide resolution of the question as the primaries approach.


“The issues presented in this petition are of exceptional importance and urgently require this court’s prompt resolution,” Trump’s lawyers wrote.


Trump’s petition followed a similar one last week from the Colorado Republican Party. The six voters who had prevailed in the Colorado Supreme Court filed a motion urging the justices to put the case on an exceptionally fast track.


The U.S. Supreme Court has not yet ruled on requests to expedite its consideration of the case. It is likely to act on them in the coming days.


The Colorado case is one of several involving or affecting Trump on the Supreme Court’s docket or on the horizon. After an appeals court rules on whether he has absolute immunity from prosecution, the justices may consider that question. And they will rule on the scope of a central charge in the federal election-interference case in a decision expected by June.


In a ruling last week, an election official in Maine agreed with the Colorado court that Trump was ineligible for another term. Trump appealed the decision from Maine to a state court there Tuesday. Both rulings are on hold while appeals move forward, giving the U.S. Supreme Court some breathing room.


Trump’s lawyers said the two rulings so far required the U.S. Supreme Court to act.


“The Colorado Supreme Court decision would unconstitutionally disenfranchise millions of voters in Colorado and likely be used as a template to disenfranchise tens of millions of voters nationwide,” they wrote. “Indeed, the Maine secretary of state, in an administrative proceeding, has already used the Colorado proceedings as justification for unlawfully striking President Trump from that state’s ballot.”


Richard L. Hasen, a law professor at the University of California, Los Angeles, said the petition was “a strong legal document” that “raises some serious, difficult questions.”


He added: “This is not to say that Trump has presented slam-dunk arguments that he should win; rather, these are arguments that merit consideration by the Supreme Court.”


The case turns on Section 3 of the 14th Amendment. Adopted after the Civil War, it bars those who had taken an oath “to support the Constitution of the United States” from holding office if they then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”


Congress can remove the prohibition, the provision says, but only by a two-thirds vote in each chamber.


By a 4-3 vote, the Colorado Supreme Court ruled in December that the provision applied to Trump, making him ineligible for another term.


“We do not reach these conclusions lightly,” the majority wrote. “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.”


Trump’s petition attacked the ruling on many grounds. It said the events culminating in the assault on the Capitol on Jan. 6 were not an insurrection.


“‘Insurrection’ as understood at the time of the passage of the 14th Amendment meant the taking up of arms and waging war upon the United States,” the petition said, noting that the amendment had been adopted after “the United States had undergone a horrific civil war in which over 600,000 combatants died, and the very survival of the nation was in doubt.”


“By contrast,” it added, “the United States has a long history of political protests that have turned violent.”


Even if the events culminating in the Capitol riot could be called an insurrection, the petition said, Trump himself had not “engaged in insurrection.”


The petition also said Section 3 did not apply to him because he had not taken the relevant kind of oath. And it said that the presidency was not one of the offices from which oath-breaking officials were barred.


Trump’s lawyers said that Section 3 disqualified people subject to it from holding office — not from seeking it. If the candidate were elected, the petition said, Congress could remove that disqualification before the candidate’s term began.


The petition also argued that judges may not act unless Congress does. “Congress — not a state court — is the proper body to resolve questions concerning a presidential candidate’s eligibility,” it said.


More broadly, Trump’s petition said voters rather than judges should assess whether his conduct disqualified him from a second term.


The provision has never been used to disqualify a presidential candidate, but it has been the subject of cases involving other elected officials after the Jan. 6 attacks.


A state judge in New Mexico ordered Couy Griffin, a county commissioner in Otero County, removed from office under the clause. Griffin had been convicted of trespassing for entering a restricted area of the Capitol grounds during the attack.


Another state judge, in Georgia, assuming that the Jan. 6 attacks were an insurrection and that participating in them barred candidates from office, ruled that the actions of Rep. Marjorie Taylor Greene, R-Ga., did not meet the standard for removal from the ballot.

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