RENO, NEVADA – DECEMBER 17: Republican Presidential candidate former U.S. President Donald Trump delivers remarks during a campaign rally at the Reno-Sparks Convention Center on December 17, 2023 in Reno, Nevada. Former U.S. President Trump held a campaign rally as he battles to become the Republican Presidential nominee for the 2024 Presidential election. (Photo by Justin Sullivan/Getty Images)
Back in September, Assemblyman Evan Low of San Jose and eight other state lawmakers asked the Attorney General to determine whether the U.S. Constitution’s Fourteenth Amendment bars former President Donald Trump from the ballot for having “engaged in insurrection.”
It seemed nothing might ever come of it, as months went by with no word back and the clock ticking toward the state’s March 5 primary.
Now this week’s bombshell ruling from Colorado’s highest court, barring Trump from the ballot in the Rocky Mountain State, has renewed the possibility in other states, including California. At least three lawsuits to keep Trump off the ballot are pending in the Golden State, along with calls from California’s Lt. Gov. Eleni Kounalakis this week for the Secretary of State to “explore every legal option” to remove the former president and earlier requests from Low and his fellow state lawmakers.
“Our goal was to get this to the courts so the courts could make this determination sooner rather than later, not in February when ballots are already out,” Low said this week. “The good thing about Colorado is that it’s gotten to the point where the Supreme Court of the United States will have to weigh in.”
Could Trump — who earned a record 6 million votes in 2020, the most-ever for a Republican presidential candidate in California — really be booted from the ballot in 2024?
Secretary of State Shirley Weber’s office did not respond to questions about Kounalakis’ letter. But Attorney General Rob Bonta’s office said this week “the Colorado Supreme Court’s decision is a powerful indication of the importance and seriousness of these claims, and we are carefully reviewing the decision.”
“Mr. Trump’s role in the January 6th insurrection demonstrates conduct that cannot be tolerated in a leader, and certainly not in the nation’s highest office,” Bonta’s office said in a statement.
With ballots headed to mailboxes in early February for California’s March 5 primary election, time is running short for any decision that would remove Trump, the overwhelming leader in polls for the Republican nomination, from the ballot.
Dec. 28 is the deadline for the Secretary of State’s certified list of candidates, and for presidential candidates to withdraw, and presidential candidate statements are due the following day.
Colorado’s deadline to print presidential primary ballots is Jan. 5, and the U.S. Supreme Court is expected to signal whether it will review the state court’s decision by then.
Low, Kounalakis and Bonta are all Democrats, and Republicans, of course, see the issue differently.
“On a purely legal matter this attempt to use the insurrection clause is legally baseless and void and I expect the Supreme Court to affirm that,” said Harmeet Dhillon, a San Francisco lawyer and California Republican National Committeewoman. Her firm represents the Trump campaign in several lawsuits seeking his removal from ballots, though not Colorado’s Anderson v. Griswold case, and defeated the state’s effort to remove him from the 2020 ballot over providing his tax returns.
There are three pending cases seeking to compel California Secretary of State Shirley Weber to remove Trump from California ballots under the Fourteenth Amendment. None is near a decision point on the merits.
Clark v. Weber was filed in September in U.S. District Court by a Venice Beach lawyer on behalf of what he said was a Republican voter, A.W. Clark, concerned his vote for Trump might be wasted if Trump later is disqualified under the Fourteenth Amendment. A judge in October dismissed the claim on grounds that voters don’t have standing for such challenges, and the plaintiffs are seeking a rehearing.
Labor lawyer Steve Sommers in August filed suit in Alameda County Superior Court seeking Trump’s disqualification under the Fourteenth Amendment. But he said he’s since realized he erred in filing there and needed to file in Sacramento, where he said the court is authorized by statute to consider such claims. He’s not done so yet, and is now waiting to see what happens with the Colorado case.
Another lawsuit filed in October by Jack Gerritsen and Henry Ramey was filed in Los Angeles County Superior Court, and seeks a hearing in August.
Dhillon, whose firm is defending Trump in the Clark case, said Republicans can use caucuses to select their nominee if states remove the former president from primary ballots before a final determination of his eligibility for office. That would put the question of his eligibility off to the November general election.
If the U.S. Supreme Court decides not to hear the Colorado case, it would allow the Colorado high court’s decision to stand in that state, and set off a scramble in other states where the former president’s opponents would seek his removal, Low said.
If the U.S. Supreme Court were to review and affirm the Colorado decision, legal scholars say it would effectively disqualify Trump’s candidacy nationwide. The Fourteenth Amendment doesn’t specify further proceedings for removal.
If the U.S. Supreme Court, with a 6-3 majority appointed by Republicans, were to review and overturn the Colorado decision outright, it could settle the question of the former president’s eligibility. But a narrower, partial or procedural reversal could lead to ongoing litigation.
Despite the high court’s Republican majority, it has rebuffed Trump in other cases and how it might rule on the Fourteenth Amendment is uncertain. The Supreme Court in January 2022, for example, declined Trump’s request to block release of presidential records sought by a congressional committee investigating the Capitol attack.
The Fourteenth Amendment, adopted in 1868 after the Civil War, mostly deals with citizenship, due process and equal protection of the laws. The insurrection clause has seldom been applied, and not against a presidential candidate.
