The Colorado court that excludes Trump: appointed by the Democrats, but closely divided

The Colorado Supreme Court, which excluded former President Donald J. Trump from the state’s primary ballot, consists of seven justices all appointed by Democratic governors.

The justices on the court serve ten-year terms, and the Democrats have held the office of governor for the past sixteen years, so all of the current justices were appointed by that party, five of whom were appointed by one man: John Hickenlooper, who was governor was from 2011. to 2019 and is now one of the state’s US Senators.

Yet the chief justice, Brian Boatright, is a Republican, while three justices are Democrats and three are listed in voter registration as “not affiliated” with any party.

And the court disagreed on whether Mr. Trump should appear on the ballot. The decision was 4-3, with the court finding that the 14th Amendment barred Mr. Trump from holding office because he “engaged in an insurrection” on January 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 any party.)

The decision was strongly criticized by Trump supporters, who said it was undemocratic to keep him off the ballot. The head of the Republican Party of Colorado, Dave Williams, said that “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 it is notably unbiased, in part because of the naming of the justices. The governor must choose from a group of nominees recommended by a bipartisan committee. The majority of the members of that committee are not lawyers. Yet most are chosen by the governor.

“It’s seen as much less political than the U.S. Supreme Court, and I think it’s true that it is much less political,” said Chris Jackson, a Denver attorney whose practice includes election law. “There aren’t really conservative and liberal judges in the way we describe the justices of the U.S. Supreme Court.”

Tuesday’s Trump decision 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 the ballot. It found that Rep. Doug Lamborn, a longtime congressman from Colorado Springs, had not collected enough valid signatures from voters to appear on the ballot. In that case, however, a federal court disagreed and ultimately reinstated Mr. Lamborn, who won the election.

Mr. Lamborn said in a statement that he hoped Mr. Trump would have similar success at the U.S. Supreme Court.

“This unlawful decision was made by the same court that years ago unconstitutionally removed my name from the ballot and 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 appealed cases, and in some of the state’s largest recent cases, the Colorado Supreme Court has rejected this.

That was the case in two cases in which the U.S. Supreme Court ultimately played a role: Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which that court in 2018 sided with a baker who had refused to make a wedding cake for a gay couple, and a case in this year, Counterman v. Colorado, in which the Supreme Court said the First Amendment placed limits on laws banning online threats.

Doug Spencer, a law professor at the University of Colorado, said the state Supreme Court appeared to be trying to toe a tight line in its Trump decision. It had decided to remove Mr Trump from the vote but had halted its own ruling.

If the case goes to the U.S. Supreme Court, as expected, Mr. Trump’s name will remain on the ballot, by order of the state court, until the Supreme Court decides the case. But Colorado’s secretary of state said Tuesday she will follow the court order on Jan. 5, when the state must approve primary election ballots.

By delaying its own decision until the Supreme Court ruled on it, Professor Spencer said, the state court had “moved through in exactly the right way” for the nation’s highest court to decide.

He added: “They are very thorough in explaining themselves, whether you agree with it or not.”

Susan C. Beachy research contributed.