From our correspondent in the United States,
This is an unprecedented decision. For the first time in history, an American state ruled that a candidate, Donald Trump, was ineligible – in Colorado – for having “participated in an insurrection” during the assault on the Capitol. Denouncing an “undemocratic” opinion and fearing that other states would do the same, the former president assured that he would take the matter to the Supreme Court of the United States.
More than 20 years after arbitrating the Bush-Gore duel, the nine judges could therefore be required to decide this thorny question, as well as that of Donald Trump’s possible immunity from the federal prosecutions that await him. All 11 months before the presidential election of November 5, 2024, with a campaign now plunged into the unknown. And an American democracy more fragile than ever.
What did the Colorado courts decide?
The 14th Amendment to the United States Constitution was adopted in 1868 after the Civil War. It stipulates that a political, military or judicial official can no longer hold such functions if he “has taken part in an insurrection or rebellion”.
Filed by a group of citizens, an appeal made its way to the Colorado Supreme Court. By four votes to three, the seven judges – all appointed by a Democratic governor – concluded that Donald Trump had indeed participated in an insurrection by inciting his supporters to go to the Capitol in order to “prevent the certification” of the victory by Joe Biden on January 6, 2021. And that the presidential office, even if it is not mentioned by name, is well covered by the 3rd section of the 14th Amendment.
Therefore, Donald Trump is ineligible. And his name cannot therefore appear on the electoral lists of Colorado for the Republican primaries – or those of the presidential election, if he wins the nomination. The body, however, suspended its injunction until January 4, the day before the deadline for finalizing the electoral lists, to give the candidate the possibility of filing an appeal before the Supreme Court of the United States. If the latter agrees to take up the matter, the suspension will be extended until an opinion is rendered.
Does Donald Trump have to go to the Supreme Court?
No. The decision only applies to Colorado, where Donald Trump lost by 13 points to Joe Biden in 2020. For the Republican, losing the 10 electors of this state on the green carpet is therefore not dramatic. He doesn’t really need it for the Republican primary either. But it’s a lose-lose situation. If Donald Trump does not appeal, other states risk following Colorado – the deputy governor of California asked the Secretary of State on Tuesday to “examine legal options” to withdraw Donald Trump from the primaries. If he appeals, the former president faces an even greater threat: seeing the Supreme Court uphold the Colorado decision, with an even more massive snowball effect, including in states Trump needs to win .
Is the Supreme Court obliged to agree to take up the matter?
No way. The nine judges can kick in or play for time by arguing that this is for the moment a state’s primary, and not yet the election. But most observers believe the issue is too important to be ignored too much by the body. “I absolutely think she will take it,” replies national security lawyer Brad Moss.
Can the Supreme Court, with a conservative majority, really declare Donald Trump ineligible?
This is the great unknown, and experts are divided. On paper, with six conservative judges out of nine, including three appointed by Donald Trump, the terrain seems much more favorable to the former president than in Colorado. “It is likely, in my eyes, that the Court will reverse the Colorado decision,” said Brad Moss. “Either interpreting that Section 3 of the 14th Amendment does not concern the presidency, or, as Michigan did, concluding that it is a political, not a judicial, question. »
Clearly, the judges could explain that it is up to Congress to remove a president – and declare him ineligible – via impeachment. And Donald Trump escaped the ultimate sanction in February 2021: 57 senators out of 100 voted to convict him, and 67 were needed to impeach him. The Supreme Court could also note that Donald Trump was not convicted by the criminal justice system for acts relating to an insurrection.
Will the question of possible immunity for Trump be resolved?
This is a separate folder. Attorney Jack Smith asked the Supreme Court to decide once and for all whether a former president can enjoy absolute immunity, even after his term ends.
Here too, the timetable is tight, as Donald Trump’s trial in Washington for electoral interference in 2020 is supposed to start in March.
What about American democracy?
To make the situation even more explosive, American democracy emerged bruised from the 2020 election, in a climate of political violence and deep divisions. Donald Trump is already capitalizing on Colorado’s decision to raise funds, writing: “This election interference is nothing less than an outgoing president’s attempt to stay in power against the wishes of voters like you.” This is exactly how dictatorships are born. »
The Berkeley constitutional law professor Orin Kerr believes on Let juries decide, and voters vote. »