The Colorado Supreme Court is the first to say Trump should be disqualified from the ballot—but even conservative legal experts have pushed that legal argument in recent months.
Topline
The Colorado Supreme Court ruled Tuesday that former President Donald Trump should be kicked off the state’s ballot under the 14th Amendment, bringing to a head a brewing legal debate among judges and legal experts over whether Trump should be disqualified for being an “insurrectionist,” as the issue likely heads to the U.S. Supreme Court.Key Facts
Section three of the 14th Amendment, enacted in the aftermath of the Civil War, states no person shall “hold any [state or federal] office” if they’ve previously taken an oath of office and then “engaged in insurrection or rebellion against the [U.S.], or given aid or comfort to the enemies thereof.”
The debate over whether Trump could be disqualified under the amendment gained steam among legal experts earlier this year after conservative legal scholars William Baude and Michael Stokes Paulson said in a forthcoming law review article, which was published as a preprint, that the Jan. 6, 2021, rebellion disqualifies Trump from being president again—and “the case is not even close”—arguing the section is still in effect and is “ready for use.”
That sentiment was echoed by other legal experts, with conservative legal scholar J. Michael Luttig and left-leaning Laurence Tribe jointly writing for the Atlantic in support of Trump being disqualified under the 14th Amendment, arguing, “No person who sought to overthrow our Constitution and thereafter declared that it should be ‘terminated’ and that he be immediately returned to the presidency can in good faith take the oath” required of presidents.
Others have taken the opposite view: Stanford Law professor Michael McConnell wrote that while he has “low regard” for Trump, letting secretaries of state disqualify political opponents from the ballot would be “profoundly anti-democratic” and he doesn’t believe Jan. 6 rises to the level of an insurrection, and Harvard University law professor Noah Feldman argued in a Bloomberg op-ed that an 1869 circuit court ruling held section three of the amendment could only go into effect if Congress passed legislation directing it to be implemented.
