Can Trump run for president at all? What the Colorado decision means and what happens next

The Colorado Supreme Court has ruled that Donald Trump is not eligible to run for office. What are the implications?

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The long-running saga that is Donald Trump’s blustering attempt to seek re-election to the US presidency took a bewildering twist this week when Colorado’s Supreme Court ruled that he was ineligible to hold office again.

The decision, pending appeal, bars him from that state’s upcoming Republican presidential primary ballot in March, when the party chooses its candidate for November’s presidential election. But what effect the ruling will have on his overall chances nationally is as yet unknown.

Colorado is only one state out of 50 that has ruled this way. Some, such as Minnesota, have considered and dismissed similar cases; others are still in train. Moreover, the Colorado justices have put their ruling briefly on hold to give Trump the opportunity to appeal to the US Supreme Court.

It is an extraordinary outcome – the first time a US court has stopped a presidential candidate appearing on a ballot due to charges of insurrection, a decision made in light of a rarely heard of 155-year-old provision of the US Constitution. It has the potential to upend the presidential election scheduled for November 5. Could this really derail Trump’s candidacy?

Credit: AP. Image has been digitally altered

What happened this week?

In a nutshell, the Colorado Supreme Court accepted an argument, brought by voters aided by an activist group called Citizens for Responsibility and Ethics in Washington, that Section 3 of the US Constitution’s 14th Amendment disqualifies Trump from holding office. Therefore, he is ineligible to appear on that state’s Republican primary ballot to be held on March 5.

According to Bloomberg, similar activists have filed lawsuits in a number of states, including Virginia and Michigan, seeking to keep Trump off the Republican primary nominating ballots. Some 13 states have cases pending. In November, the case in Minnesota was dismissed, the court ruling on grounds that, technically, Trump was not yet the Republican nominee.

The Colorado case hinged on three key questions.

First, whether it was an insurrection when Trump supporters stormed the Capitol (the seat of Congress) in Washington, DC on January 6, 2021, following a rally at which Trump repeated false claims that the election held in November 2021 had been fraudulently stolen from him.

Second, whether Trump had engaged in that insurrection through his messages to supporters and his Twitter posts.

Third, and crucially, whether Section 3 of the 14th Amendment, adopted after the US Civil War and rarely mentioned since, specifically applied to the presidency, given its somewhat opaque wording. It reads, in part: “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.”

The Colorado court took the view that Trump had indeed engaged in insurrection with his actions leading up to a mob of his supporters storming the Capitol with his speeches and social media posts, and that his actions certainly triggered the relevant part of the Constitution.

“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. 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.”

Recognising their 4-3 split decision, the justices noted: “We do not reach these conclusions lightly. 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 favour, and without being swayed by public reaction to the decisions that the law mandates we reach.”

The court’s most important ruling, according to Laurence Tribe, the Carl M Loeb University Professor of Constitutional Law Emeritus at Harvard University, was finding what the point of the 14th Amendment was: “to make sure that anyone who takes an oath to uphold the United States Constitution, and holds any office but then engages in an insurrection against the constitution, can no longer hold any office in the country”.

Pro-Trump supporters storm the Capitol on January 6, 2021. Credit: Getty Images

Can Trump run for president without all 50 states on board?

While it is unusual these days for a major candidate to not stand for their party in every state, it’s not super-rare, nor particularly problematic. President Joe Biden won’t contest next year’s New Hampshire primary, for example, largely due to a dispute over the timing of the ballot. Famously, in the 1968 presidential election, Democratic candidate Hubert Humphrey received his party’s nomination without contesting a single primary. (He entered the fray too late and the rules were different back then anyway; he still lost.)

‘The crucial thing about this Colorado decision is it speeds up the process of getting the issue to the Supreme Court, and it’s the United States Supreme Court decision that will be definitive.’

As to being barred: no, there is nothing in the Constitution that speaks to this, says John Hart, a former head of department at ANU and author of The Presidential Branch: From Washington to Clinton. “If a candidate for the presidency is elected president, and no challenge to that decision is made in the United States Congress when they count the electoral votes at the beginning of January, then even if a single state says that Trump had committed insurrection and is ineligible for office, it wouldn’t have any effect.”

That said, the Colorado ruling will, says Hart, inexorably push the matter towards the US Supreme Court. “The crucial thing about this Colorado decision,” says Hart, “is it speeds up the process of getting the issue to the Supreme Court, and it’s the United States Supreme Court decision that will be definitive. If the Supreme Court says that Trump committed insurrection on January the sixth and is therefore barred from office, that will be the end of it.”

He believes the Colorado Supreme Court decision to pause its ruling acknowledges this. “It’s saying ‘we realise that Trump and other parties will appeal the case to the Supreme Court, we realise this issue is causing confusion among state courts, so it will go to the Supreme Court. That’s a given, so, therefore, we are just making this decision, a kind of a temporary decision, depending on the speed at which the Supreme Court deals with the case.’”

However, if the Supreme Court declines to review the case, or does not come down with a decision before the Colorado primary, the Colorado Supreme Court decision will stand in that state and Trump will be ineligible to appear on the ballot there.

Joe Biden and Vice-President Kamala Harris (centre) with members of the Supreme Court in September, 2022.Credit: Supreme Court of the United States

What effect will this have on the Trump campaign?

Not being able to compete in Colorado alone would not necessarily be a great setback for the Trump campaign. Trump could lose Republican delegates he might otherwise pick up for his Republican nomination, but he was unlikely in any case to win Colorado overall, says Bruce Wolpe, a Colorado native and a senior fellow at the United States Study Centre at the University of Sydney.

“Colorado voted Democratic in the past four presidential elections,” he says. “It’s expected that Trump will lose in Colorado whether he’s on the ballot or not. So if Colorado’s the only state where this applies, it would not change the outcome of the election.”

The Colorado decision may even embolden his supporters, says Wolpe. “There’s a counter-reaction in favour of Trump which is explosive, which is already under way,” he says. To his followers, he says, “this is the ultimate conspiracy by the deep state to keep him out of the presidency, another example of the weaponisation of the political process and the courts and the Justice Department to stop Trump.”

Perversely, he says, “The reaction to this ruling by the Colorado Supreme Court to keep him off the ballot may, in fact, help cement his victory in November 2024.”

‘It may end up being not so much a contest between Trump and Biden as personalities, but between Trump and the survival of the American constitutional system.’

Tribe holds similar views, at least in the short term. “I think it helps his campaign – his whole narrative is one of victimisation.” But in the long term, “it may contribute to a deeper public understanding of what a danger he is to democracy … It may end up being not so much a contest between Trump and Biden as personalities, but between Trump and the survival of the American constitutional system. It may, in that direct way, make his defeat more likely.”

Alan Rozenshtein, an associate professor at the University of Minnesota law school, notes while Trump is also facing several other criminal and civil charges, this case is about his eligibility to hold office. “In one sense, it’s the least important of the cases; it doesn’t threaten his finances or his liberty. On the other hand, from the perspective of American democracy, it’s the most important.” Says John Hart: “The critical thing is the Colorado Supreme Court decision is forcing the United States Supreme Court to take this case. That will open up all the complex issues about the relevance of the 14th amendment.”

What happens next?

The Colorado court has temporarily stayed its decision so Trump can appeal to the US Supreme Court if he chooses. The Trump campaign has labelled the Colorado decision “flawed” and “undemocratic”. For now, Trump can continue to be on the ballot in Colorado.

A Trump campaign spokesman, Steven Cheung, called the decision “un-American” and called on the US Supreme Court to swiftly rule in Trump’s favour. “Unsurprisingly,” said Cheung, “the all-Democrat appointed Colorado Supreme Court has ruled against President Trump, supporting a Soros-funded, left-wing group’s scheme to interfere in an election on behalf of Crooked Joe Biden by removing President Trump’s name from the ballot and eliminating the rights of Colorado voters to vote for the candidate of their choice.”

‘It’s the most significant [US] Supreme Court Case for a generation or longer if it turns out the court decides Trump is ineligible to run.’

While the US Supreme Court holds a 6-3 conservative majority, including three justices nominated by Trump during his presidency, if it does decide to hear the matter, it will be ruling on Colorado’s decision but the implications will be for every state, says Jessica Levinson, a professor at Loyola Law School. “It would be a precedent,” she says, comparing it to Roe v Wade when the US Supreme Court struck out protection rights for abortion based on a Mississippi law. “If the court were to uphold Colorado’s decision then other states similarly would be free to conclude that Trump is not eligible for the ballot.”

Says Tribe: “It’s the most significant [US] Supreme Court case for a generation or longer if it turns out the court decides Trump is ineligible to run. If it, in effect, dumps the issue, then it will be much less momentous.”

The outcome, he says, is impossible to predict.

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