The Colorado Supreme Court’s extraordinary decision disqualifying former President Trump for office under the 14th Amendment ignited a firestorm among politicians and legal observers, who now stare down the possibility of Trump being removed from the ballot next year.
The full ruling, which includes the majority opinion and three separate dissents, spans 213 pages filled to the brim with analysis of the amendment’s text and the use of Colorado election law to enforce it.
Trump and his allies have broadly attacked the ruling, which marks the first state to kick Trump off the ballot, as unconstitutional and partisan. Trump’s team has vowed to take the fight to the U.S. Supreme Court.
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Here are five takeaways from Tuesday’s ruling.
Decision wades into ‘uncharted territory’
The Colorado Supreme Court’s landmark ruling raises the possibility that a major candidate for the presidency could be left off the ballot. In their decision, the state justices made clear that the case forced them to “travel in uncharted territory.”
Republicans pounced on the decision, portraying it as a partisan attempt to keep Trump from returning to the White House.
“We do not reach these conclusions lightly,” the majority opinion reads. “We are mindful of the magnitude and weight of the questions now before us.”
Jena Griswold, Colorado’s secretary of state, acknowledged the historic nature of the decision in an interview with MSNBC’s Andrea Mitchell but said there were “mechanisms within the law” to handle the scenario.
“This is definitely a historic case,” Griswold said. “In fact, it’s historic because usually we don’t have presidents trying to steal elections and [then] running for office again.”
Court says 14th Amendment applies to presidents
To kick Trump off the ballot, the Colorado Supreme Court notably reversed a trial judge’s finding that the 14th Amendment didn’t apply to the presidency.
The threshold issue has been at the center of the case and boils down to a thorny debate over two portions of the text.
In the first, the amendment specifies it only applies to people who engaged in insurrection after taking an oath as “an officer of the United States” to “support” the Constitution. Trump argued he was not an officer, and the presidential oath to “preserve, protect and defend the Constitution” was different than merely a promise to “support” it.
“The specific language of the presidential oath does not make it anything other than an oath to support the Constitution,” the Colorado Supreme Court ruled.
The second part at issue involves the meaning of the phrase “office … under the United States” in the amendment. Noting that the provision explicitly lists out other positions, the trial court agreed with Trump that the presidency doesn’t qualify, enabling him to remain on the ballot. The state’s top court on Tuesday said it “cannot accept” that finding.
“A conclusion that the Presidency is something other than an office ‘under’ the United States is fundamentally at odds with the idea that all government officials, including the President, serve ‘we the people,’” the majority opinion reads. “… A more plausible reading of the phrase ‘under the United States’ is that the drafters meant simply to distinguish those holding federal office from those held ‘under any State.’”
Trump’s Jan. 6 speech unprotected by First Amendment
Colorado’s highest court determined that the speech Trump gave to his supporters on the Ellipse ahead of the Capitol riot incited the crowd — and thus that it was not protected by the First Amendment.
In the speech, Trump railed against purported election fraud, describing the 2020 election as the “most corrupt election in the history, maybe, of the world,” and urged then-Vice President Mike Pence to “do the right thing” by refusing to certify the true results of the election.
He rallied his supporters to march toward the Capitol and “fight like hell.”
“And if you don’t fight like hell, you’re not going to have a country anymore,” Trump told the crowd.
The First Amendment does not protect speech that “incites lawless action,” and the Colorado Supreme Court determined that Trump’s Jan. 6 address did just that. To reach that conclusion, the state justices applied a three-prong test established by a 1969 case involving a Ku Klux Klan leader.
The test asks whether speech in question “explicitly or implicitly” encouraged violence or lawless action, whether the speaker intended for the speech to cause violence or lawlessness and whether the “imminent use” of violence or lawless action was the likely result of the speech.
Ultimately, the higher court upheld the district court’s determination that Trump created a “general atmosphere of political violence” before Jan. 6, 2021. The state justices cited past comments where Trump backed his supporters’ violence, including his remark during a 2020 presidential debate that members of the right-wing, extremist Proud Boys should “stand back and standby.” Four Proud Boys were later convicted of seditious conspiracy for plotting to halt the certification of the election.
“The tenor of President Trump’s messages to his supporters in exhorting them to travel to Washington, D.C. on January 6 was obvious and unmistakable: the allegedly rigged election was an act of war and those victimized by it had an obligation to fight back and to fight aggressively,” the Colorado Supreme Court ruling reads. “And President Trump’s supporters did not miss or misunderstand the message: the cavalry was coming to fight.”
Court finds Trump engaged in insurrection
Like the district court, the Colorado Supreme Court also found that Trump’s actions leading up to the Capitol attack — and the riot itself — were tantamount to engaging in insurrection.
The state justices ruled that determining a “single, all-encompassing” definition for the word “insurrection” was not necessary for the purpose of deciding the case. Instead, the court concluded that any definition of insurrection would involve a group of people engaging in a “concerted and public” use or threat of force to “hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
Though those involved must act in a “concerted” way, they need not be “highly organized” at the insurrection’s start, nor must their effort “ensure probable success,” the court ruled. And the force — or threat of force — required of an insurrection need not involve bloodshed, the ruling says.
The state justices had “little difficulty” concluding that the Jan. 6, 2021, Capitol attack qualifies as an insurrection under that definition — and that Trump “engaged in” it.
Before the election had even been decided, Trump began “laying the groundwork” to claim the election was stolen, the court wrote. After the election, his public statements and social media posts boosted baseless claims of election fraud, riling up his base. On Dec. 19, 2020, he urged his supporters in a post to descend on the nation’s capital on Jan. 6 for a “wild” protest — a post that served as a “call to arms” for extremist groups.
On the day itself, Trump directed his supporters, some toting Revolutionary War and Confederate battle flags, toward the Capitol. The court’s chronology noted that Trump’s supporters were “following his instructions.”
“We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection,” the state justices wrote.
Sets up U.S. Supreme Court showdown
Although extraordinary, Tuesday’s ruling is unlikely to be the last word on the matter.
Legal observers have long anticipated the 14th Amendment dispute would reach the U.S. Supreme Court, and the ruling in Colorado will now force the justices’ hands, as Trump has vowed to appeal.
“This ruling, issued by the Colorado Supreme Court, attacks the very heart of this nation’s democracy. It will not stand, and we trust that the Supreme Court will reverse this unconstitutional order,” Alina Habba, Trump’s legal spokesperson, said in a statement.
With only a slim set of historical examples, the Colorado justices noted that the 14th Amendment challenge “presents several issues of first impression.”
“In the end the legal issues are close but the political ramifications of disqualification would be enormous,” Rick Hasen, an election law expert who teaches at the University of California, Los Angeles, wrote in a blog post.
Hasen and other experts have made comparisons to when the Supreme Court effectively had the last word on the 2000 presidential election in Bush v. Gore.
“Once again the Supreme Court is being thrust into the center of a U.S. presidential election,” Hasen continued. “But unlike in 2000 the general political instability in the United States makes the situation now much more precarious.”