The 4-3 decision was harshly criticized by Trump supporters, who called it undemocratic. But some observers say the court is notably nonpartisan.
The Colorado Supreme Court, which barred former President Donald J. Trump from the state’s primary ballot, is composed of seven justices who were all appointed by Democratic governors.
Justices on the court serve 10-year terms, and Democrats have held the governor’s office for the last 16 years, so all of the current justices were appointed by that party, with five appointed by one man: John Hickenlooper, who was governor from 2011 to 2019 and is now one of the state’s U.S. senators.
Still, the chief justice, Brian Boatright, is a Republican, while three justices are Democrats and three are listed in voter registration records as “unaffiliated” with a party.
And the court was not of one mind on whether Mr. Trump should appear on the ballot. The decision was 4-3, with the court ruling that the 14th Amendment forbade Mr. Trump from holding office because he had “engaged in insurrection” on Jan. 6, 2021, when his supporters overran the Capitol. (Of the four who voted with the majority, two are registered Democrats and two are not registered with a party.)
The decision was harshly criticized by supporters of Mr. Trump, who said that keeping him off the ballot was undemocratic. The head of Colorado’s Republican Party, Dave Williams, said “out-of-control radicals” in Colorado “would rather spit on our Constitution than let the people decide which candidates should represent them in a free and fair election.”
But some observers of the court say that it is notably nonpartisan, in part because of how the justices are named. The governor must choose from a pool of nominees recommended by a bipartisan commission. The majority of the members on that commission are not lawyers. Still, most are chosen by the governor.
“It’s perceived to be way less political than the U.S. Supreme Court, and I think it’s true that it’s way less political,” said Chris Jackson, a lawyer in Denver whose practice includes election law. “There aren’t really conservative and liberal justices in the way that we describe the U.S. Supreme Court justices.”
The decision on Trump on Tuesday was not the first time the court has removed a political candidate from the ballot. In 2020, it ruled that a Democratic U.S. Senate candidate, Michelle Ferrigno Warren, could not appear on the primary ballot because she had not collected enough signatures from voters. A lower court had been more lenient, citing the Covid-19 pandemic, but the state’s highest court disagreed.
Two years earlier, in 2018, the court removed a Republican candidate from a ballot. It found that Representative Doug Lamborn, a longtime congressman from Colorado Springs, had not collected enough valid voter signatures to be on the ballot. In that case, however, a federal court disagreed and eventually reinstated Mr. Lamborn, who won the election.
Mr. Lamborn said in a statement that he hoped Mr. Trump would have similar success in the U.S. Supreme Court.
“This wrongful decision was made by the same court that unconstitutionally removed my name from the ballot years ago & had to be corrected by a federal court,” Mr. Lamborn wrote on the social media platform X.
Like the U.S. Supreme Court, the Colorado Supreme Court can choose whether to hear cases that are appealed to it, and, in some of the state’s biggest recent cases, the Colorado high court has declined.
That was true in two cases in which the U.S. Supreme Court eventually weighed in: Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which that court sided in 2018 with a baker who had refused to make a wedding cake for a gay couple, and a case this year, Counterman v. Colorado, in which the high court said that the First Amendment put limits on laws banning online threats.
Doug Spencer, a law professor at the University of Colorado, said the state’s high court appeared, in its Trump decision, to try to walk a tight line. It had ruled to remove Mr. Trump from the ballot but put a pause on its own ruling.
If the case is appealed to the U.S. Supreme Court, as is expected, then Mr. Trump’s name would, under the state court’s order, remain on the ballot until the Supreme Court decides the case. But the Colorado secretary of state said on Tuesday that she would follow whatever court order is in place on Jan. 5, when the state must certify ballots for the primary election.
In staying its own decision until the Supreme Court weighs in, Professor Spencer said, the state court had “teed it up in just the right way” to be decided by the nation’s top court.
He added: “They’re very thorough in terms of explaining themselves, whether or not you agree with them.”
Susan C. Beachy contributed research.
Source: Elections - nytimes.com
