11 months before the American presidential election in November 2024, it is a real constitutional bolt from the blue. The Colorado Supreme Court declared Donald Trump ineligible in this state on Tuesday, in the name of his participation in an “insurrection” during the assault on the Capitol on January 6, 2021, and ordered his removal from the local electoral lists of the primary republican (pdf).
However, this decision was immediately suspended to give Donald Trump time to appeal. Denouncing an “undemocratic” decision, the former American president indicated that he would file an appeal before the Supreme Court of the United States, which should be called upon to decide this thorny issue. Because Colorado is not the only state where Donald Trump’s candidacy is threatened: similar appeals have been filed in around twenty states. Several, notably Michigan and Minnesota, have rejected them.
The 14th Amendment on Insurgencies
In Colorado, it all started with the appeal of the anti-corruption citizen group Crew. According to them, Donald Trump is ineligible under the 14th Amendment to the United States Constitution, an 1868 text adopted after the Civil War. The aim was to bar access to any leader who had engaged in an “insurrection” or a “rebellion”.
A month ago, a Colorado judge split the pear in two ruling that Donald Trump had indeed participated in an “insurrection” because he had “the specific intention to incite political violence and direct it towards the Capitol with the aim of preventing the certification of the election” of Joe Biden. But Judge Wallace nevertheless ruled that section 3 of the 14th Amendment did not apply to the office of President of the United States.
Composed of 7 judges appointed by Democratic governors, the Colorado Supreme Court returned 4-3 on the second part, finding that even if the 14th Amendment did not explicitly specify it, it did cover the presidency. Therefore, Donald Trump is ineligible and cannot be registered to vote in the primary.
Conservative Supreme Court
For the moment, the Colorado courts have suspended their decision until January 4, the day before the deadline to finalize the primary lists. If the United States Supreme Court agrees to take up the matter by then, the suspension will be extended until a final decision. This means that Donald Trump should logically remain on the lists of the Republican primary, which will be held on March 5, 2024, during “Super Tuesday”.
Will the US Supreme Court let states disqualify the former US president? The balance of power is far from being the same as in Colorado. The conservatives have a large majority (6-3), with three judges appointed by Donald Trump.
On CNN, Barack Obama’s former Mr. Ethics, Norm Eisen, estimated that the highest judicial body in the United States “will not be able to easily set aside the 14th Amendment.” According to him, it is “difficult to predict” which way it will lean. What is certain is that she will have to play the supreme arbiter: federal prosecutor Jack Smith has already asked the Court to decide once and for all whether Donald Trump benefits from immunity protecting him from numerous lawsuits federal authorities that target it.