Apparently, the Colorado Republican Party does not dispute that Donald J. Trump “engaged in” an insurrection on January 6, 2021.

That’s interesting. Perhaps astounding. Or perhaps they just don’t want the U.S. Supreme Court to officially agree as much.

In asking SCOTUS to overturn the Colorado Supreme Court decision, in Anderson v. Griswold — which directed the CO Secretary of State not to place the name, Donald J. Trump, on the Colorado Republican Presidential Primary Ballot — the CO GOP, in its Petition for Writ of Certiorari, failed to contest the factual findings, initially made by a trial court and later upheld by the CO Supremes, that what took place on January 6, 2021 was an “insurrection” and that former President Donald J. Trump “engaged” in that insurrection.

(Those currently uncontested findings also provided the basis for the administrative law ruling [PDF] issued by Maine Secretary of State Shenna Bellows on Thursday, determining that the name Donald J. Trump may not appear on Maine’s Republican Presidential Primary ballot.)

Instead, the CO GOP confined its legal arguments to (1) whether a “President falls within the list of officials subject to disqualification under §3 of the 14th Amendment”, (2) whether §3 is “self-executing”, and (3) whether a court-ordered disqualification violates the Party’s First Amendment right of association.

As observed by Harvard’s constitutional scholar, Lawrence Tribe, the claim that a President is not an “officer” subject to §3 disqualification is “as baseless textually as it is off base intuitively.”

The 1st Amendment right of association argument is also remarkably weak.

The U.S. Constitution mandates anyone running for President must be at least 35-years old at the time they enter office. If a refusal to place the name of a 25-year old on a Presidential primary ballot doesn’t violate 1st Amendment associational rights, then surely the refusal to place the name of someone disqualified by reason of §3 of the 14th Amendment doesn’t violate the 1st Amendment either.

Nonetheless, despite weak arguments, absent a swift SCOTUS denial of cert, it’s likely the name Donald J. Trump will appear on the CO Republican Primary ballot…

Tight window

The CO Supremes stayed their decision barring Trump until January 4, 2024 — the day before Colorado’s ballot certification date — adding: “If review is sought in the Supreme Court before the stay expires, it shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot until the receipt of any order or mandate from the Supreme Court.”

The Anderson citizen Respondents — four Republican and two unaffiliated voters who were eligible to vote in the CO Republican primary — filed a SCOTUS Motion seeking to expedite a decision whether to grant cert and to expedite briefing if cert is granted.

In their motion, the Anderson Respondents note that “[b]ecause Colorado votes almost exclusively by mail, completing the election by March 5, requires significant work in advance.”

Even if the CO Supremes approved an extension of the state’s January 5 ballot certification deadline, there would be very little time afforded to CO Secretary of State Jenna Griswold to act. Under federal law, the Centennial State would have to mail ballots to overseas voters by January 20.

So, absent a swift SCOTUS denial of cert (which would leave the SCOCO bar in place), the name Donald J. Trump will appear on Colorado’s Presidential Primary ballot.

That would leave state Republican Primary voters in the same unsettling position as Republican voters in Michigan, where the Great Lake State’s Supreme Court kept Trump on the primary ballot, but did not resolve the question with respect to his qualification for the general election ballot.

Collateral estoppel

Although a grant of cert followed by an expedited SCOTUS determination that the former President is indeed ineligible by reason of §3 of the 14th Amendment would be the ideal resolution — the most Constitutionally conservative, in any event — a swift SCOTUS denial of cert would also have nationwide significance because it would render the Colorado Supreme Court’s finding that Trump had engaged in insurrection to become final.

Under the legal principle known as collateral estoppel, Trump would be prevented from contesting the fact that he engaged in an insurrection in any subsequent proceeding in another state.

GOP voters’ dilemma

Republicans, in Colorado, Michigan, Minnesota and elsewhere, could overwhelming vote for the former President in their respective primaries only to subsequently learn that the name Donald J. Trump would not appear on the ballot next November because of disqualification under §3 of the 14th Amendment. Indeed, there’s a distinct possibility that the Republican Party could formally nominate an ineligible candidate.

UPDATE 1/3/24: Donald J. Trump filed a separate Petition for a Writ of Certiorari in which he contested the Colorado trial court’s factual findings, upheld by the Colorado Supreme Court that what took place on Jan. 6, 2021 was an “insurrection” and that the former President “engaged” in that insurrection.

UPDATE 1/5/24:,/b> SCOTUS issued an Order granting certiorari. The order imposes an expedited briefing schedule. Oral arguments will take place on Feb. 8, 2004.

* * *Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing