Colorado’s top court disqualified Trump – will the Supreme Court overrule?

The ruling from Colorado’s top court that Donald Trump cannot appear on the state’s ballot as a Republican presidential candidate is now almost certain to end up before the US Supreme Court.

It means the nine justices of America’s highest court will, once again, take centre stage in a presidential election year.

The Colorado court said it had found “clear and convincing evidence that President Trump engaged in insurrection” at the time of the Capitol riot and disqualified him from running for president, citing an amendment to the US Constitution.

A number of legal experts who spoke to the BBC said the court, with its 6-3 conservative majority, now finds itself in a precarious position given the highly charged nature of this unprecedented case.

“The Supreme Court is being asked to define the boundaries of democracy,” Samuel Issacharoff, a constitutional law professor at New York University, said.

It is a particularly difficult challenge, Prof Issacharoff said, because the former president “has tremendous support on one side of the aisle and tremendous vilification on the other”.

The blockbuster case, then, will be closely scrutinised by observers of all political persuasions and could have major ramifications on the public’s perception of the court. But how are its nine justices likely to view it?

Almost all experts who spoke to the BBC said the Supreme Court would likely take up the case and overrule Colorado’s decision to disqualify Mr Trump, but would look to do so in the least damaging way.

“I suspect that institutional caution on their part will impel them towards not upholding the disqualification of Donald Trump,” Prof Issacharoff said.

Robert Tsai, a law professor at Boston University, expressed a similar view. He said the court would be thinking: “What’s going to be the opinion that looks the least damaging that overrules the Colorado Supreme Court?”

The court has a number of legal options available to it if it does take issue with the Colorado decision, the experts said. Some of those are more forceful and final than others.

The most decisive potential ruling, the experts said, would be to issue a direct opinion on whether Mr Trump should be disqualified from running for federal office.

If they rule directly on that, and overrule Colorado, their decision would apply in all states and the former president would be back on the ballot.

One decisive option would require a majority of the justices to say that they are legally convinced that Mr Trump did not engage in insurrection.

The other decisive option would be for a majority of the justices to find that he did.

“My general reaction is that the Colorado Supreme Court got it right. What happened on January 6 was an insurrection. Trump did engage in it, therefore he is disqualified,” Prof Somin said.

There was some doubt among legal experts, though, about what exactly constitutes insurrection within the amendment used to disqualify Mr Trump. There is little legal precedent to point to in the 150 years since the Civil War-era amendment went into effect.

It was originally written to prevent former Confederate soldiers and politicians who lost the Civil War from being elected into office and overthrowing the Union.

Experts told the BBC it could not have been imagined that the amendment would be applied to a former president running for re-election who is also the dominant candidate of his party.

“You don’t have a clear definition of what insurrection is within the meaning of the 14th Amendment. It’s not clear. It just uses the word,” Prof Tsai said.

The other issue with disqualifying Mr Trump on the grounds of engaging in an insurrection is that he has not yet been found guilty of doing so by any court.

This opens the door to the Supreme Court finding Colorado’s decision to be procedurally flawed under the scope of an old legal doctrine called the political question doctrine. It states that in the absence of a court ruling that someone did engage in an insurrection, the question of eligibility is a political question for Congress, not for the courts, Prof Tsai said.

The Supreme Court could also decide that the “officer of the United States” referred to in the 14th Amendment does not refer to the presidency. Some experts have noted that this was one of the weaker arguments.

“If there’s anybody who’s an officer of the United States, it’s somebody who holds the highest and most powerful office in federal government,” Prof Somin said.

But others have said the lack of explicit mention of “president” in the text is likely to appeal to many of the conservative judges on the Supreme Court, as it did to a lower court in Colorado.

“That’s certainly the kind of answer that would appeal to someone like [Chief Justice] John Roberts,” Prof Tsai said. “When he feels like an issue is too politically fraught, he can come up with an opinion that kind of dumps it in someone else’s lap or gives neither side a clean victory.”

This option would also be favourable to Neil Gorsuch, too, he said.

“That would appeal to him [as] a textualist”, Prof Tsai said, someone who expressly looks to give meaning to the words strictly in the text.

A softer option would be for the court to overrule it on technical grounds.

But legal analysts say a softer, more procedural, ruling, such as one that suggests there was insufficient evidence in Colorado, could mean the issue is left unresolved in the longer term.

“The Supreme Court could end up dismissing on procedural grounds [which] would allow the issue to continue to percolate among state governments and lower courts,” Ilya Somin, a law professor at George Mason University, said.

“There would be a price to doing that because there would be further uncertainty as to how this issue would be resolved,” he said.

“If they did it in a way in which state courts and state officials could continue to make their own decisions on the issue, then the price would be that Mr Trump could be disqualified in some states and not in others,” Prof Somin said.

However, the future ruling of the Supreme Court in Mr Trump’s Colorado case lies mostly in uncertainty, the experts said.

“They’ve never been presented with anything like this,” Prof Tsai said. “They’re kind of in a tough spot. If they step in and save the president here, then it’s going to look partisan.”

“If they don’t step in, it’s going to be a huge mess potentially.”

Prof Issacharoff put it more simply: “It’s a lose-lose.”