Donald Trump appealed to the US supreme court on Wednesday to undo the Colorado ruling that removed him from the ballot in the western state under the 14th amendment to the US constitution, for inciting an insurrection.
The Colorado court issued its ruling last month, but in anticipation of an appeal stayed it until 4 January, two days short of the third anniversary of the deadly attack on Congress by supporters Trump told to “fight like hell” in an attempt to overturn his 2020 defeat by Joe Biden.
Promising to appeal “swiftly”, a spokesperson for Trump, Steven Cheung, said the then former president turned clear Republican presidential frontrunner had “full confidence that the US supreme court will quickly rule in our favour”.
After the Colorado ruling, Trump was also removed from the ballot in Maine, by its secretary of state, who also suspended the ruling pending appeals. Trump appealed that ban in state court on Tuesday.
Separately, Trump faces 91 criminal charges, 17 for election subversion. In the federal election subversion case, the US supreme court is also due to consider Trump’s claim that he enjoys immunity from prosecution for any acts in office.
The supreme court is dominated 6-3 by conservatives, in large part thanks to three appointments made when Trump was in office.
The 14th amendment was adopted in 1868, soon after the civil war. Section three provided for barring from federal and state office anyone who fought for the Confederacy in that conflict.
Notably, the provision has rarely been used. Many legal observers expect Trump to prevail in the Colorado case, one of numerous such challenges, others having failed in state courts.
The supreme court does not have to take the Colorado case but in all likelihood will. Its handling of the case will be closely watched, not least by progressives angered by the court’s rightward shift and contentious rulings, including the removal of the federal right to abortion.
In the aftermath of the Colorado ruling, Ty Cobb, once a White House lawyer for Trump, told CNN: “I think this case will be handled quickly. I think it could be 9-0 in the supreme court for Trump … because I think the law is clear.”
According to Cobb – and other former Trump lawyers – the law is clear that the presidency and vice-presidency are not covered by section three, specifically its definition of a government office, because those positions are not mentioned.
In full, section three reads: “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. But Congress may by a vote of two-thirds of each House, remove such disability.”
Last week, ABC News examined records of debate over the 14th amendment. In one exchange, Reverdy Johnson, a Maryland senator, asked why the text of section three did not mention the presidency or vice-presidency.
Lot Morrill, from Maine, said: “Let me call the senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”
That, Steven Portnoy of ABC wrote, “end[ed] the discussion on that point”.
J Michael Luttig, a conservative former judge who testified in front of the House January 6 committee, has repeatedly stressed that in his view, Trump should be removed from the ballot.
Speaking to MSNBC in December, Luttig saluted a “historic [and] unassailable decision that the former president is disqualified from the presidency because he conducted, engaged in or aided or supported an insurrection or rebellion against the United States constitution”.
Trump and other Republican presidential contenders have said barring Trump under the 14th amendment would be anti-democratic, and that only voters should choose who is fit for office. So have prominent Democrats.
Luttig said: “What I would say to all Americans is that the constitution itself has determined that the disqualification of the former president is not what is anti-democratic.
“Rather, the constitution tells us that it is the conduct that can give rise to disqualification under the 14th amendment that is anti-democratic.”
