Can Colorado really ban Donald Trump from the election ballot? 

December 20 – Colorado’s State Supreme Court yesterday declared Donald Trump unable to run for president in 2024 and removed him from state ballots because of the insurrection clause in the 14th Amendment to the Constitution. 

This is the first time in history that this has been done. 

The clause in question essentially states that anyone who took the oath of office and then engaged in insurrection or rebellion can be banned from holding office again. 

Colorado’s Supreme Court did not unanimously agree on this – it was a 4-3 decision. 

The decision is on hold until January 4, pending an appeal from Trump. 

It’s certainly clear that this could very well reach the US Supreme Court before it’s all said and done. 

Pat Ryan of NewsTalk 103.7FM pointed out, “Because of your stupidity, you’re helping Donald Trump this morning do some amazing fundraising.  This doesn’t go anywhere. Anybody with a small legal mind can see how this doesn’t hold any water here, but you’ve got a whole bunch of folks on the left and the Matlock crowd out there that seems to think that oh, look at what’s happening. This is well overdue.”

Attorney Clint Barkdoll said, “I think the US Supreme Court will take this up. Remember they don’t have to hear the case. But I think they will because it is of such national importance. I think they are going to rule that this needs to be left to the voters, that they’re going to overturn this. Just remember by way of background, this issue is not new. Remember this summer, it was those two conservative Federalist Society, Constitutional law professors that published this law review article at the University of Pennsylvania. Now the professors were from Florida and Illinois. They laid this case out. They said they think there is an argument that under the 14th Amendment, Trump should be banned from running and being elected president again and that was the genesis. So you’ve had all of these cases going on around the country and until yesterday, every other state that’s heard the identical argument said no, we are not getting into this, including some pretty liberal state Supreme Courts like Minnesota and Michigan and there have been some others. So all the other states that looked at this said no.”

In addition to Trump’s ban on the ballot, the Colorado Supreme Court also said even if his name is written in, the votes will not be counted. 

Barkdoll noted, “By the way, this case in Colorado was not brought by Democrats. That’s another missed thing that’s out there, misinformation. These were Republican and Independent electors that brought this lawsuit in Colorado. Now they had some interest groups backing them in this as well.”

There are similar cases pending in other states all over the country. 

Barkdoll continued, “But it’s just such a slippery slope if states start to ban someone from appearing on a ballot, and I think that’s where the Supreme Court is going to weigh in and say there’s no way that states can do this. To take a step back from this, the law issues aside, Trump benefits tremendously from this from a political standpoint. He has 91 criminal counts against him. Every indictment that’s been filed up until now, his poll numbers go up. Within hours of this court decision last night, everyone got the email solicitations for money. I had a call from the RNC last night, because they know this kind of thing really gins up the base. So I know there’s this argument, this is election interference, and there is an argument for that, but he benefits tremendously when these kinds of things happen. So I imagine secretly in Trump’s campaign camp right now, they are gleeful at this Colorado Supreme Court decision.”

Michele Jansen of NewsTalk 103.7FM added, “Well, despite that benefit to the campaign, this is a very dangerous ruling because I mean they ruled four, but three didn’t. Three dissented and the one judge was very clear about first of all, you haven’t given Trump due process. Just because a lower court said, oh, yes, it was an insurrection. First of all, it’s not an insurrection. What happened January 6 does not meet the definition of insurrection, and that’s been demonstrated over and over again. We keep finding out more and more about untruthful things that were said by the Capitol Police even in some of the trials that may be brought back out after these things get revealed. Less and less is this looking like an insurrection and more and more is it looking like what I think most people think that it was, a protest that got out of hand with a lot of weird events going on at the time that really aren’t explained well. I mean, you’re comparing this to the Civil War for heaven’s sakes. The 14th Amendment and the things that they’re appealing to happened following the Civil War for people that were actually in a rebellion against the United States, in a war and people are trying to say that’s similar to January 6. In no way is that similar to January 6. There’s also ways that he doesn’t meet the definition even for the target, technically for the 14th amendment. It’s just so bizarre. They’re really reaching and doing something that just sets a horrible precedent of people doing the same thing, reaching into the constitution and interpreting very odd things in order to get what they want. The Banana Republic term keeps being thrown around, but we really are, if that would be allowed to stand, moving in that way. What an irony for the people that say Trump is a threat to democracy when this is such a ridiculous ruling that really does threaten democracy, the people’s ability to choose who they want for president.”

Barkdoll said, “It’s a good point, too, I think that all of these other states, including some very liberal Supreme Courts have already heard this issue and said no, that he cannot be banned from the ballot. You raise a good point about the 14th Amendment. I saw all this commentary yesterday about the framers knowing exactly what they were doing. They could foresee this. This was not the framers. This was done in the late 1860s. The framers were all long gone by then. This was a constitutional amendment post Civil War and the amendment itself, it’s very few words. That’s one of the dilemmas here. There’s virtually no case law that’s ever looked at this. The amendment doesn’t talk about whether you need to be convicted? What constitutes the word insurrection? But historically, it was all in the context of those post Civil War times where they were concerned about certain actors trying to run for national office that had just been engaged in trying to dissolve the whole Union, the United States. So that was the historical context.”

With the ballot deadlines coming up, the US Supreme Court will need to move quickly. 

Barkdoll pointed out, “By the way, Trump would have never won Colorado anyway. This only stands for the state of Colorado right now. They’re a very blue state. But obviously Trump has an interest in getting the Supreme Court to weigh in on this to make sure that there’s a uniform rule now around the US. So this will move very quickly. They’ve put a hold on it for two weeks while an appeal is filed. Assuming the Supreme Court takes the case, we will get a decision on this I would imagine maybe as early as late January, early February because that’s around when the ballot printing deadlines are in Colorado for the upcoming primary.”