Colorado Supremes Ban Trump for Insurrection
A historic ruling likely to be overturned.
AP (“Donald Trump banned from Colorado ballot in historic ruling by state’s Supreme Court“):
A divided Colorado Supreme Court on Tuesday declared former President Donald Trump ineligible for the White House under the U.S. Constitution’s insurrection clause and removed him from the state’s presidential primary ballot, setting up a likely showdown in the nation’s highest court to decide whether the front-runner for the GOP nomination can remain in the race.
The decision from a court whose justices were all appointed by Democratic governors marks the first time in history that Section 3 of the 14th Amendment has been used to disqualify a presidential candidate.
“A majority of the court holds that Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment,” the court wrote in its 4-3 decision.
Colorado’s highest court overturned a ruling from a district court judge who found that Trump incited an insurrection for his role in the Jan. 6, 2021, attack on the Capitol, but said he could not be barred from the ballot because it was unclear that the provision was intended to cover the presidency.
The court stayed its decision until Jan. 4, or until the U.S. Supreme Court rules on the case. Colorado officials say the issue must be settled by Jan. 5, the deadline for the state to print its presidential primary ballots.
“We do not reach these conclusions lightly,” wrote the court’s majority. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
Trump lost Colorado by 13 percentage points in 2020 and doesn’t need the state to win next year’s presidential election. But the danger for the former president is that more courts and election officials will follow Colorado’s lead and exclude Trump from must-win states.
Dozens of lawsuits have been filed nationally to disqualify Trump under Section 3, which was designed to keep former Confederates from returning to government after the Civil War. It bars from office anyone who swore an oath to “support” the Constitution and then “engaged in insurrection or rebellion” against it, and has been used only a handful of times since the decade after the Civil War.
“I think it may embolden other state courts or secretaries to act now that the bandage has been ripped off,” Derek Muller, a Notre Dame law professor who has closely followed the Section 3 cases, said after Tuesday’s ruling. “This is a major threat to Trump’s candidacy.”
The Colorado case is the first where the plaintiffs succeeded. After a weeklong hearing in November, District Judge Sarah B. Wallace found that Trump indeed had “engaged in insurrection” by inciting the Jan. 6 attack on the Capitol, and her ruling that kept him on the ballot was a fairly technical one.
Trump’s attorneys convinced Wallace that, because the language in Section 3 refers to “officers of the United States” who take an oath to “support” the Constitution, it must not apply to the president, who is not included as an “officer of the United States” elsewhere in the document and whose oath is to “preserve, protect and defend” the Constitution.
The provision also says offices covered include senator, representative, electors of the president and vice president, and all others “under the United States,” but doesn’t name the presidency.
The state’s highest court didn’t agree, siding with attorneys for six Colorado Republican and unaffiliated voters who argued that it was nonsensical to imagine that the framers of the amendment, fearful of former confederates returning to power, would bar them from low-level offices but not the highest one in the land.
Colorado Supreme Court Justices Richard L. Gabriel, Melissa Hart, Monica Márquez and Hood ruled for the petitioners. Chief Justice Brian D. Boatright dissented, arguing the constitutional questions were too complex to be solved in a state hearing. Justices Maria E. Berkenkotter and Carlos Samour also dissented.
“Our government cannot deprive someone of the right to hold public office without due process of law,” Samour wrote in his dissent. “Even if we are convinced that a candidate committed horrible acts in the past — dare I say, engaged in insurrection — there must be procedural due process before we can declare that individual disqualified from holding public office.”
WaPo (“Trump disqualified from Colorado’s 2024 primary ballot by state Supreme Court“) adds:
The 4-3 ruling marked the first time a court has kept a presidential candidate off the ballot under an 1868 provision of the Constitution that prevents insurrectionists from holding office. The ruling comes as courts consider similar cases in other states.
If other states reach the same conclusion, Trump would have a difficult — if not impossible — time securing the Republican nomination and winning in November.
The decision is certain to be appealed to the U.S. Supreme Court, but it will be up to the justices to decide whether to take the case. Scholars have said only the nation’s high court can settle for all states whether the Jan. 6 attack on the U.S. Capitol constituted an insurrection and whether Trump is banned from running.
“A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution,” the decision reads. “Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”
The Colorado Supreme Court’s majority determined the trial judge was allowed to consider Congress’s investigation of the Jan. 6 attack on the U.S. Capitol, which helped determine that Trump engaged in insurrection.
“We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection,” the majority wrote.
Derek Muller, a University of Notre Dame law professor who has studied the cases challenging Trump’s candidacy, called the Colorado decision unlike any other in history.
“No candidate’s ever been kept off the ballot for engaging in an insurrection, much less a presidential candidate, much less a former president,” he said. “So it’s just extraordinary.”
The decision puts intense pressure on the U.S. Supreme Court to act. A broad ruling by the high court would resolve the issue for all states.
“It feels like the kind of case the Supreme Court has to weigh in on,” Muller said.
In the short term, the Colorado ruling could influence courts and election officials in other states, he said. Other states have not taken such a step so far but may be willing to do so now that Colorado has acted, he said.
Section 3 bars those who engage in insurrection from holding office and does not mention who can run for office. The majority rejected the idea that that meant the state could not keep candidates off the ballot who did not meet qualifications for serving as president, such as being at least 35 years old and being a U.S. citizen.
“It would mean that the state would be powerless to exclude a twenty-eight-year-old, a non-resident of the United States, or even a foreign national from the presidential primary ballot in Colorado,” the majority wrote.
The three dissenters cited different reasons for why they disagreed with the majority. One would have dismissed the case because Trump has not been charged with insurrection, one would have dismissed because Trump has not been convicted of a crime and the third did not believe the court had the authority to decide the issue under the state’s elections code.
I’ve written at length about this issue several times since the Capitol Riots, going as far back as January 2022: “The Disqualification Clause and January 6,” “14th Amendment Solutions,” “Testing Section 3,” and “Banning Trump From Office.” Suffice it to say, I think the Colorado Supremes got it wrong here and will almost certainly be reversed by SCOTUS. It’s simply absurd to me that a court could simply declare an individual who hasn’t been convicted of a crime to be an insurrectionist and ban them from office.
One contested issue where I agree with the majority, though, is the applicability of Section 3 to the Presidency. To the extent it’s applicable to anyone,* it makes no sense to exclude the highest officer in the land. (That said, the clause is incredibly poorly written. Why specifically mention Senators, Representatives, and Electors, and then proceed to exclude everyone generically?)
The one issue I hadn’t considered in those above-linked posts is whether Section 3 even applies to party primaries. Offhand, I would think not in that they’re not actual elections for public office and, indeed, there’s no requirement for parties to even hold primaries to choose their candidates. On the other hand, they’ve been part and parcel of our electoral system for more than half a century now. [UPDATE: Upon reflection, states routinely treat primaries as actual elections and exclude unqualified candidates from the ballot. The Nicholas Kristoff case comes to mind.]
*As noted in previous posts, there’s a strong argument that the provision only applies to those who took up arms against the Union in the Civil War. Further, Congress has the power to waive the disability imposed by Section 3 and did so on a blanket basis in 1872 (under the signature of Ulysses Grant, no less) and 1898. So, it’s arguably a dead letter.