WASHINGTON — As the nation awaits the U.S. Supreme Court’s decision on whether Donald Trump can be on Colorado’s ballot, legal experts are speculating about the outcome.
FOX31 was told the most likely scenario is that Colorado’s decision will be overturned, allowing the former president to return to the Colorado primary ballot, but it’s also possible that this same conversation will come up again in November — in Congress.
During oral arguments Thursday, one of the topics both liberal and conservative justices seemed to be most concerned about was whether states have the right to invoke the so-called Insurrection Clause of the U.S. Constitution against a candidate.
University of Denver law professor Ian Farrell has been helping FOX31 explain the case since it was first filed in Denver District Court in September. Because the court didn’t spend much time talking about the definition of insurrection or the Jan. 6 Capitol attack, he said their decision was unlikely to provide a clear answer about whether Trump could specifically remain in office. No.
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Instead, they believe the court’s decision will set a precedent by saying that individual states cannot use Section 3 of the 14th Amendment against themselves or anyone else.
“This leaves the underlying eligibility question open. This would mean that they have not decided whether what happened on January 6 was insurrection, whether Trump participated in the insurrection in such a way that he was disqualified. All of this will still be an open question that states can’t act on, Farrell said.
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Primary voting in Colorado is March 5, but ballots will be mailed next week. It’s unclear whether the judges will have an answer before then.
If the issue eventually reaches Congress, it would need a two-thirds vote to pass, something experts say is highly unlikely given the current climate in both the House and Senate.