[Update – Below, long-time commenter SKI, who, unlike me, is a lawyer, takes me to task for a number of issues within this post. On the plus side, he agrees with my conclusion. On the minus side, he walks through everything I got wrong along the path to getting to said conclusion. I highly recommend reading it as its very informative. I’ve also struck through some of the more egregious errors.
SKI and Roger (who also chimed in), I’ll keep this lesson in mind the next time I start writing outside of my subject matter expertise area. A Country Lawyer and HL96****, I think I have learned my lesson… and I totally understand if you want to join in the pile on.]
As James has covered, the Colorado State Supreme Court issued its decision in Anderson v. Griswold early last night. At the core of the case is whether Trump’s actions in the wake of the 2020 election would lead to him being barred from holding federal office based on Section 3 of the 14th Amendment. In a split, 4 to 3 decision*, the Court ruled that Trump engaged in an insurrection and was therefore disqualified from running for President:
In this appeal from a district court proceeding under the Colorado Election Code, the supreme court considers whether former President Donald J. Trump may appear on the Colorado Republican presidential primary ballot in 2024. 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. 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 court stays its ruling until January 4, 2024, subject to any further appellate proceedings.
If review is sought in the Supreme Court before the stay expires on January 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court.
https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf
[MB: emphasis mine]
The first thing to note is that the Colorado Supreme Court has stayed this ruling until January 4th, the day before the Colorado Secretary of State must approve the Republican primary ballots. If the Tenth Circuit or the Supreme Court takes up the issue, the stay will most likely remain in place, and Trump will be on the ballot for the Republican primary. This will almost certainly be what will happen.
My first prediction today is that a higher court will maintain the stay, and Trump will be on the Republican Primary ballot in Colorado.
Some folks suggested last night that the Trump campaign might not contest this decision because Trump has never won Colorado. However, that is pure wish-casting. The former President has to appeal this for two major reasons. Leaving this uncontested would most certainly lead to other States considering similar actions. More importantly, as pointed out by Dr Derek Muller at the Election Law Blog, this decision harms Trump because it creates doubt in the mind of the electorate if he could ultimately assume the office even if he was to win the election:
Even temporarily being kept off the ballot has negative effects with voters. Do they want to risk voting for a candidate who’s been declared by a court to be ineligible? I think back to a recent dust up in Iowa in 2022, when a Senate candidate (and openly the front-runner) was barred from the ballot, briefly, for lacking enough signatures, only to have the decision reversed by the state supreme court days later. She then lost the primary to an upstart candidate who gained momentum those last six weeks as the campaign was seen in disarray and something of a risk.
https://electionlawblog.org/?p=140292
This will be appealed and almost certainly decided by the Supreme Court. I expect the Supreme Court to bypass the Tenth Circuit and take it up directly. As such, the remainder of this post will focus on some (grounded) predictions about the outcome of that review.
Spoiler alert: I predict the Supreme Court will rightfully overturn this decision.
The Colorado Supreme Court decision is long and detailed, containing much analysis. As such, I have not been able to read it closely (though I am looking forward to doing that in the days to come). I did read the three (far shorter) dissents. For this post, the dissents are far more valuable as they outline how the Federal Courts have several options for overturning this ruling.
Prediction: The ruling will be overturned without addressing whether 3 of the 14th Amendment applies to the President.
I don’t think there is any possibility that the Supreme Court will address this issue until they have absolutely no choice**. While Presidental Eligibility is the most important issue in the case, it’s also a political nightmare for the Court to decide, especially under our current conditions: a year out from a Presidential Election where one of the two leading candidates is under indictment for crimes that may fit under insurrection.
Following Dr. Muller, I suspect that the Court would feel that issuing such a decision prior to this Election would throw the process into chaos. Such a ruling risks pulling on a thread, or more accurately, setting up a series of conditions that could unravel the entire election if Trump is convicted prior to November 4th.
Do I think they should rule on this topic? Yes. And I also think that punting on Eligibility, at least for the moment, is probably the right thing to do. It’s also in keeping with the typical Federal court approach of defining the issue at hand as narrowly as possible and avoiding making major interpretations of the Constitution.
[Note to readers: Here is where our learned commenters–actual lawyers, mind you–feel things go off the rails. So if you are reading, grab a lot of grains of salt. HL96, if you are reading this, break out the booze and wait to swallow before you read].
Prediction: The final decision will focus on specific procedural issues in the Colorado case, mainly if a State Court can find that a Federal Officer engaged in Insurrection.
That prediction is based on the dissents, which all take the same general approach to contesting the majority decision. The Colorado dissents focus on three key issues:
- Can a civil judge find that Former President Trump engaged in insurrection?
- Can Colorado Electoral Statutes be used to trigger this type of review?
- Is the 14th Amendment self-executing?
Of these, I expect the final decision will focus primarily on the first issue. And, probably to the disappointment of most readers, I believe the Colorado Courts overstepped their bounds in finding that Trump engaged in insurrection. In my eyes, this is the most vulnerable part of the decision.
There is a legal debate about how engaging in insurrection can be determined, particularly if a conviction is needed. My bias is that the finding is serious enough, especially in the context of Section 3 of the 14th Amendment, that it needs to be determined in a more formal process than as part of a state judge’s*** review of the case facts. I suspect the Supreme Court will agree and rule that such a determination can only be made at the Federal level.
The Supreme Court might even put some guardrails up around this. For example, such a finding might need to involve a criminal or impeachment conviction or an act of Congress. However, for the same reasons, I think they will avoid directly addressing Section 3 of the 14th Amendment, I think they will avoid being too specific about how such a finding is made. They are more likely to simply use existing precedent to determine only that this finding cannot be made at the State level.
Issue 2, because it is tied to State Law, is trickier. The Supreme Court cannot review the interpretation of State Law. The most they can do is consider whether or not the law, as interpreted by the majority of the State Supreme Court, is in keeping with the US Constitution. Doing so would ultimately bring them back to the issue of eligibility under Section 3 of the 14th Amendment, and as I said earlier, I think they punt on that.
Issue 3 could also be a place for the Supreme Court to rule. However, whether Section 3 of the 14th Amendment is self-executing (that it goes into effect or can be enforced after being created without anything else needing to be done) also gets into thorny territory that could disrupt the 2024 election. That said, it is possible that they can establish that the parties involved did not have standing to bring the initial suit without touching on the issue of self-execution.
In his post, James raises the possibility that this could be rejected because the question was about eligibility to participate in a primary election. I agree that primary elections are a party versus a State function (in fact, the Republican party could have switched to a caucus this year**** and rendered that part of the decision moot). However, because the finding went far beyond that initial question and found that Trump is ineligible under Section 3 of the 14th Amendment, I think it needs to be disposed of in a different way to clear that finding altogether.
In closing, I expect that, as with Jack Smith’s recent appeals in Trump’s DC trial, the Federal Courts will act quickly in this–most likely taking the case up within the next few days. Whether or not this jumps straight to the Supreme Court is up in the air. I can see arguments for and against the bypass. Either way, the stay will remain in place, and Trump will be on the ballot in Colorado. Finally, wherever the final decision is made, the case will ultimately be determined by ruling on procedural issues rather than the issue of Section 3 of the 14th Amendment.
* – A lot will most likely be made of the fact that the Justices were all appointed by Democrats and that they split on this. The indispensable election and criminal legal system publication Bolts Magazine provides a bit more detail on how those justices were selected:
The governor selects a nominee from a list of names prepared by a nominating commission, called the Supreme Court Nominating Commission. This body includes the chief justice and 17 other members named by some combination of the governor, chief justice, and attorney general. (The constitution specifies that no more than 9 of the members can be of the same political party.)
https://boltsmag.org/whats-on-the-ballot/state-supreme-courts/
The makeup of the court was created by a bi-partisan panel.
** – There are a few scenarios where I see the Supreme Court needing to make that ruling. The most obvious is if Trump is convicted in DC on Federal charges related to trying to overturn the 2020 election prior to the election (or, if he wins the Presidential election, prior to taking office). We will not know if either has a serious probability of happening until, at the very least, March of next year when Judge Chutkin sets the trial date.
The other option would be an extreme hail mary on the part of the Democrats that would require (1) Trump to win the Election and (2) the Democrats to hold the Senate and take back the House. At that point, since the new Congress starts before the new President, they could push through a resolution that the President-Elect had participated in an insurrection, thus forcing the Supreme Court to take up the issue. This is not at all likely, but still worth noting as an extreme possibility.
*** – Allowing State judges to make such a determination about a Federal Officer would open up a pandora’s box of political litigation. In fact, the fear of Federal officers being politically prosecuted at the State Level is why state cases can be removed to Federal Court.
**** – Thank you to Jen for her correction that this wouldn’t be as simple as I made it out to be:
Yes, they could potentially do this, but no, because this would require a meeting of the central committee to make a bylaw change, and the GOP central committee in Colorado has hsignificant challenges in getting to the necessary thresholds to change the bylaws.
https://outsidethebeltway.com/colorado-supremes-ban-trump-for-insurrection/#comment-2848659
