State Supreme Courts Reach Opposite Conclusions in Trump Ballot Disqualification Cases

UPDATE: An updated version of this article was published on January 8, 2024. On March 4, 2024, the U.S. Supreme Court overturned the Colorado Supreme Court’s decision excluding Donald Trump from the ballot in that state, holding that only Congress may disqualify candidates for federal office under Section 3 of the Fourteenth Amendment.

The Colorado Supreme Court made headlines Tuesday when it ruled that former President Trump is ineligible to be on the state’s Republican primary ballot based on the Disqualification Clause of the 14th Amendment. Just last month, the Minnesota Supreme Court came to the opposite conclusion. The disparate results can be explained in part by differences in state election laws and the paths the cases took to the state high courts.

Section 3 of the 14th Amendment bars anyone from holding public office if they have sworn an oath to uphold the Constitution and subsequently “engaged in rebellion or insurrection” or “given aid or comfort to enemies” who did so.

In Anderson v. Griswold, the Colorado Supreme Court ruled 4–3 that Trump was disqualified under this provision because, it concluded, he had sworn to “preserve, protect and defend the Constitution of the United States” at his inauguration and then engaged in an insurrection on January 6, 2021. Meeting these conditions, the court held, barred him from serving as an elected official and from being on the primary ballot for president. The court also ruled that the voters who filed the lawsuit had properly used the relevant state election statute to bring the case. The court held that “it would be a wrongful act under the Election Code for the Secretary [of State] to list [Trump] as a candidate on the presidential primary ballot.”

The decision partially affirmed a 102-page ruling by a Denver trial court, which had held a five-day trial to determine whether Trump was qualified to be on the Colorado primary ballot. The trial court judge had determined that Trump had engaged in an insurrection, but that he could remain on the ballot because the Disqualification Clause did not apply to the presidency. (The 14th Amendment states that “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” if the conditions mentioned above are met.)

The Colorado Supreme Court accepted the trial court’s factual findings and then went the extra step of ruling that the Disqualification Clause does apply to presidents and the presidency. Moreover, the Colorado Supreme Court concluded, “the clear purpose of Section Three [was] to ensure that disloyal officers could never again play a role in governing the country. . . . The drafters of Section Three were motivated by a sense of betrayal; that is, by the existence of a broken oath, not by the type of officer who broke it.”

In contrast to Colorado, where the process started with a trial, in Minnesota, the proceedings to remove Trump from the ballot started in the state’s supreme court, which held an oral argument on November 2. In Growe v. Simon, the Minnesota high court decided 6–0 that Trump could stay on the Republican primary ballot in Minnesota. The court held that “although the Secretary of State and other election officials administer the mechanics of the election, this is an internal party election to serve internal party purposes, and winning the presidential nomination primary does not place the person on the general election ballot.” The court added, “[t]here is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot, or sending delegates to the national convention supporting, a candidate who is ineligible to hold office.”

In short, the Minnesota court found that the choice of who could be on the Republican primary ballot was a matter for the Republican Party to decide, not something to be adjudicated by a court. The case was dismissed without a hearing on the factual evidence about January 6 or Trump’s role.

Thus, the Minnesota Supreme Court never reached the merits of the questions of whether the Disqualification Clause applied to Trump, whether he engaged in an insurrection, or whether he was disqualified from being on the ballot. The court also left the door open for the plaintiffs, who include a former Minnesota secretary of state, to revisit the issue of removing Trump from the state’s general election ballot if he is eventually nominated.

Both of these state supreme court decisions turn in part on the interpretation of state election laws governing federal elections — a power held by state courts, as the U.S. Supreme Court recently reaffirmed in Moore v. Harper. In Minnesota, the high court found that a presidential primary is not an “election” that would allow the court to render an opinion about candidate qualifications. Rather, the state has delegated considerable power to the political parties to act as appropriate gatekeepers.           

By contrast, the Colorado law has an expedited procedure for preventing the secretary of state from causing an error on the ballot. Here the “error” would be the placement of a constitutionally disqualified candidate such as Trump on the primary ballot. The Colorado plaintiffs are Republican and unaffiliated voters who would all have the ability to vote in Colorado’s Republican 2024 primary. And importantly, the statute they filed under gave the plaintiffs a cause of action that allowed them into court. The state supreme court ruled that the plaintiffs used the correct Colorado election law procedures to challenge Trump’s eligibility to be on the ballot.

The Colorado plaintiffs are represented by Citizens for Responsibility and Ethics in Washington, also known as CREW. This organization has some experience with litigating Disqualification Clause issues — it won a similar case in 2022 in New Mexico that resulted in the removal of a January 6 participant, Couy Griffin, from his office as county commissioner.

Trump’s side has promised to appeal the Colorado ruling to the U.S. Supreme Court. If the justices take the case, they may have a quartet of January 6 related cases at the same time. The Court has already agreed to hear Fischer v. United States, which is about whether a federal law against obstructing an official proceeding is appropriate to use against January 6 participants. Special Counsel Jack Smith has a pending request for the Supreme Court to leapfrog the DC Circuit Appeals Court to consider Trump’s presidential immunity arguments against his federal prosecution. The Court also has a pending request to hear Couy Griffin’s case. The new Colorado ruling makes it likely that questions about Trump’s ballot eligibility will also end up before the Court this term.

Ciara Torres-Spelliscy is a professor of law at Stetson University College of Law and a Brennan Center fellow.