There is a strong chance the U.S. Supreme Court will overturn a Colorado court's decision to keep former President Donald Trump off the state ballot for 2024, legal experts told Newsweek.
"It's an extraordinary decision that puts Trump's election campaign in major legal jeopardy. It also will put a lot of pressure on the Supreme Court to review the decision," Derek T. Muller, a law professor at the University of Notre Dame in Indiana told Newsweek.
Muller wrote a neutral amicus curiae or "friend of the court" submission in the Colorado Supreme Court case that removed Trump from the ballot on Tuesday. Muller said that there were "hard legal questions" at the center of the case.
"My instinct is that the Supreme Court would reverse, but it's not a sure thing," he said.
The Colorado Supreme Court ruled that the former president should be removed from the state ballot because of his role in the January 6, 2021, riot at the U.S. Capitol.
The historic case could destroy Trump's chances of becoming president and opens up the prospect of more ballot challenges to his candidacy in other states.
The part of the Constitution that blocks those who have engaged in insurrection from serving in office is Section 3 of the 14th Amendment, which was ratified in 1868, three years after the Civil War ended.
In his submission to the Colorado court in late November, Muller highlighted various cases in which presidential candidates have been removed from the ballot in Colorado and other states.
Muller's briefing highlighted the case of independent presidential candidate Abdul Hassan, whom Colorado Judge Neil Gorsuch removed from the state's presidential ballot in 2012 because Hassan was not born in America, as the rules required.
In its ruling on Tuesday, the Colorado Supreme Court quoted from the 2012 ruling by Gorsuch, who is now a U.S. Supreme Court justice.
Several legal commentators said that the Colorado Supreme Court deliberately quoted Gorsuch as a signal that he should protect Colorado's right to decide its own election rules.
However, former federal prosecutor Neama Rahmani told Newsweek that the U.S Supreme Court would likely overturn the Colorado ruling.
"Given the makeup of the Supreme Court and the legal and political considerations, I think the Colorado Supreme Court's ruling will be overturned, even though Trump did engage in an insurrection," Rahmani said.
"Colorado was always the best venue for the14th Amendment litigants because the secretary of state there has an affirmative duty to disqualify constitutionally prohibited candidates, and because the Colorado Supreme Court justices were all appointed by Democrat governors. That won't be the same in the conservative U.S Supreme Court," he said.
Rahmani, now president of the West Coast Trial Lawyers law firm, said Trump "has a lot of arguments on appeal, and each of them have been cited by the states that rejected the 14th Amendment challenges, as well as the dissenting justices in Colorado."
Judges in other states, such as Michigan and Rhode Island, have rejected 14th Amendment challenges to Trump's inclusion in their states' presidential ballot.
"Trump hasn't been charged, much less convicted, of insurrection," Rahmani said. "It may be a non-justiciable political issue to be decided by Congress, and Trump was acquitted in his impeachment trial in the Senate.
"The claim may be premature because Trump isn't officially the Republican candidate or the Colorado court's definition of insurrection may have been too broad. Liberals are going to have overcome all these defenses, and the political reality that disqualifying the leading Republican candidate for legal reasons may be bad public policy."
Federal attorney Colleen Kerwick told Newsweek that the U.S Supreme Court will likely hear the case but Trump could be president by the time they reach a decision.
"During the pendency of the case, the order of the Colorado Supreme Court would be stayed," she said. "As an insurrection challenge is necessarily going to involve complex legal questions, the case may become moot after the presidential election on November 5, 2024 or waived after the inauguration on January 20, 2025."
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Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more
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