Former US President Donald Trump attends the Trump Organization civil fraud trial in New York State Supreme Court in New York City.
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The Colorado Supreme Court determined Donald Trump is ineligible to run for or hold public office.Trump pledged to take the case to the Supreme Court to rule if he’s eligible to be on the ballot.The Supreme Court has until January 5 to decide if it’ll hear the case.
After the Colorado Supreme Court on Tuesday ruled Donald Trump ineligible to run for or hold public office in the state due to his role in the January 6 attack on the Capitol, the former president vowed to appeal the issue to the Supreme Court of the United States.
Trump’s qualification for office will likely be handed off to the highest court in the land. While the Colorado decision has focused on his eligibility to be included on the state’s primary ballot, the ruling would also apply to the general election.
Six legal experts explained to Business Insider the options that SCOTUS has: do nothing and allow Colorado’s ruling to lapse, refuse to add the case to the docket, or agree to hear arguments and issue a decision themselves.
But the justices are on something of a time limit to decide.
In its ruling, the Colorado Supreme Court wrote that unless SCOTUS chooses to review the case before January 4, 2024 — the day before the deadline to certify the state’s presidential primary ballot — Trump’s name will be added to the ballot until the high court hands down a decision.
As long as Trump or his lawyers ask SCOTUS to review the ruling before January 4, he will be on the ballot, Doron Kalir, a professor at Cleveland-Marshall College of Law, told Business Insider. And while SCOTUS will have to decide whether they’ll hear the case, they will not have to weigh in and make a final ruling before that deadline.
“In other words, as we sit here right now, Donald Trump is still able to be listed on the Republican primary ballot in Colorado,” David Becker, the executive director and founder of the Center for Election Innovation and Research, told Business Insider. “Only if the United States Supreme Court declined to take the case or otherwise upholds the Colorado Supreme Court’s decision will his name be removed.”
What happens if the Supreme Court waits out the clock?
SCOTUS could decide to wait to hear this case for several reasons, former Assistant US Attorney Kevin O’Brien told Business Insider.
“This may not be the right vehicle the Supreme Court wants to have to rule on the 14th Amendment or section three of the 14th Amendment in particular; they may want a different case, they may want several cases, they may wait,” O’Brien said. “But you know, the pressure of time is upon them. So that would argue for taking this case soon and getting it argued as soon as possible.”
Scott Lemieux, a professor of political science at the University of Washington and an expert in constitutional law, said it’s possible SCOTUS could take up the case in its shadow docket or issue a stay of its own without making a formal ruling. Doing so would prevent the Colorado decision from going into effect while the appeals process plays out.
Still, other experts think the US Supreme Court is most inclined to try to weigh in on the decision directly, given the time-sensitive nature of the ruling.
At issue: the insurrection clause
The Colorado Supreme Court, in its decision, cited section 3 of the 14th Amendment, referred to as the insurrection clause, which specifies that officials who have “engaged in insurrection or rebellion” or have “given aid or comfort” to those carrying out an insurrection are ineligible to run for office.
Notre Dame Law School professor Derek Muller, an election law scholar, told Business Insider he believes the Supreme Court will be inclined to hear the case because it deals with the 14th Amendment — which has never been subject to interpretation by the Supreme Court in the 150 years it has been in place.
The amendment explicitly names senators and representatives in Congress, the electors of the President and Vice-President, and any official holding “any office, civil or military, under the United States” as accountable to the rule. But it doesn’t specifically mention the presidency. And while the Colorado Supreme Court determined the presidency is included in the provision, SCOTUS could disagree.
Though the current ruling only applies to Colorado, experts told Business Insider the state’s decision could encourage groups in other states to file similar lawsuits in hopes of kicking Trump off the ballot. While losing Colorado, which leans blue, would not be a significant disadvantage to Trump in a general election, the consequences would be more significant if a swing state challenged his qualifications on the ballot.
“Excluding a leading presidential candidate and former president from the ballot is a major decision, and I’m just not sure that the court can stand by not doing anything,” Muller said. “So I think it’s going to have to weigh in. But how it’s going to resolve the case, I don’t know. There’s lots of different ways it can go.”
What happens if SCOTUS takes the case?
If the Supreme Court decides not to take the Colorado case, it will effectively kick the issue back to individual states, allowing each one to determine whether Trump is eligible to be named on their ballots. But, if SCOTUS agrees to hear the case, as many experts believe they will, there’s no clear-cut outcome.
“The Supreme Court can reverse this case on no less than 5 or 6 grounds,” Kalir told Business Insider, adding that the reasons SCOTUS could overturn the case vary widely and include issues of separation of powers, freedom of speech, and the limited powers of state courts.
Kalir said SCOTUS could also decide that due process is required to determine a person engaged in insurrection to use the 14th Amendment, as a dissenting Colorado Supreme Court judge argued, and may determine that Trump is eligible to be on the ballot until he is convicted of a crime related to January 6.
Christian Grose, a professor of political science and public policy at USC, told Business Insider that though it’s unlikely, it’s certainly possible SCOTUS could surprise everyone and agree with the Colorado ruling, ultimately banning Trump from being on the ballot not just in that state, but nationwide.
“The Supreme Court could actually roll in agreement with Colorado and if they do, that would bar him from the ballot everywhere,” Grose said. “So it’s a bit of risk, even though three of the people in the Supreme Court were appointed by Trump and might be more aligned with Trump, you know, it’s still a risk to have to take something like this to the US Supreme Court.”
The potential outcomes in the case run the gamut from Trump’s Supreme Court-ordered vindication to the possibility that he could be permanently banned from office by the highest court in the land. And we’ll have to wait a bit longer to see what they decide.
“This is one of those things where you’re involved no matter what you do,” O’Brien told Business Insider. “If you abstain, you’re involved. If you rule in favor of Trump, you’re involved, and if you uphold what the Supreme Court of Colorado did, you’re also interfering and involved so, you know, there’s no easy out for that. They’re gonna have to think long and hard about this.”