The Colorado voters who sought to disqualify Donald Trump from the state’s 2024 Republican primary ballot ran the table on eight distinct legal issues on Tuesday. To ultimately keep him off the ballot, though, they almost certainly will have to do so again — in the US Supreme Court.
In a 4-3 decision that set off a political and legal earthquake, the Colorado Supreme Court said that Trump had engaged in insurrection and therefore was barred by the 14th Amendment from holding federal office.
“This is a major and extraordinary holding from a state supreme court,” Derek Muller, a law professor at the University of Notre Dame, wrote on the Election Law Blog. “Never in history has a presidential candidate been excluded from the ballot under Section 3 of the Fourteenth Amendment. United States Supreme Court review seems inevitable, and it exerts major pressure on the court.”
The majority on Tuesday said every key legal issue came out against Trump.
“The sum of these parts is this: President Trump is disqualified from holding the office of president,” the majority said in an unsigned opinion, saying that his efforts to overturn the 2020 election results amounted to engaging in an insurrection and that Section 3 of the 14th Amendment, ratified after the Civil War, bars insurrectionists from federal office, including the presidency.
The majority added: “We do not reach these conclusions lightly. 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 favour, and without being swayed by public reaction to the decisions that the law mandates we reach.”
But the court gave Trump a provisional escape route. It put its ruling on hold through to January 4, and if he seeks review in the US Supreme Court, as he said he will, the state court said his name would remain on the primary ballot.
What happens next?
It could take some time for the justices to act, and the Colorado Republican primary, scheduled for March, could proceed unaffected. The justices may have to grapple with the case’s many interlocking legal issues, which are novel, complex and extraordinarily consequential. Indeed, courts in other states have come to differing conclusions on some of the questions.
The justices may also be reluctant to withdraw from the voters the decision of how to assess Trump’s conduct after the 2020 election.
Section 3 of the 14th Amendment bars those who had taken an oath “to support the Constitution of the United States” from holding office if they then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”.
Congress can remove the prohibition, the provision says, but only by a two-thirds vote in each chamber.
Though the provision was devised to address the aftermath of the Civil War, it was written in general terms and, most scholars say, continues to have force. Congress granted broad amnesties in 1872 and 1898. But those acts were retrospective, scholars say, and did not limit Section 3′s prospective force.
A Colorado trial judge had ruled that Trump had engaged in insurrection but accepted his argument that Section 3 did not apply to him, reasoning that Trump had not sworn the right kind of oath that the provision did not apply to the office of the presidency.
The Colorado Supreme Court affirmed the first part of the trial judge’s ruling — that Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election; trying to alter vote counts; encouraging bogus slates of competing electors; pressuring the vice president to violate the Constitution; and calling for the march on the Capitol.
But the majority reversed the part of the trial judge’s decision that said the Section 3 provision did not bar Trump from seeking reelection.
The constitutional counter-argument
That view has its critics. In an opinion piece published in The Wall Street Journal in September, Michael B. Mukasey, who served as attorney general under President George W. Bush, wrote that Section 3 is limited to people who had taken an oath to support the Constitution “as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state”.
The only category that even arguably applies to Trump is “an officer of the United States”, Mukasey wrote. But that phrase, he asserted, “refers only to appointed officials, not to elected ones”.
In a law review article first published in August, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St Thomas disagree with Mukasey.
Their article concluded that “the ordinary sense of the text” of the Constitution, “the structure and logic of its provisions”, “the evident design to be comprehensive”, “the seeming absurdity of the prospect of exclusion of the offices of president and vice president from triggering the disqualification” and other factors “all convince us that the natural conclusion is the correct one: Section 3 includes in its coverage, or ‘triggering’ language, insurrectionists who once served as president and vice president”.
They added that “a reading that renders the document a ‘secret code’ loaded with hidden meanings discernible only by a select priesthood of illuminati is generally an unlikely one”.
Other scholars, notably Josh Blackman of South Texas College of Law Houston and Seth Barrett Tillman of Maynooth University in Ireland, say that Section 3 does not cover Trump. There is, they wrote, “substantial evidence that the president is not an ‘officer of the United States’ for purposes of Section 3″.
The Colorado Supreme Court ruled that the presidency is covered by the provision. “President Trump asks us to hold that Section 3 disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section 3.”
The state Supreme Court addressed several other issues. Congress does not need to act to disqualify candidates, it said. Trump’s eligibility is not the sort of political question that is outside the competence of courts. The House’s report on the January 6 attack on the US Capitol was properly admitted into evidence. Trump’s speech that day was not protected by the First Amendment, it said.
The court added that states are authorised under the Constitution to assess the qualifications of presidential candidates. “Were we to adopt President Trump’s view,” the majority wrote, “Colorado could not exclude from the ballot even candidates who plainly do not satisfy the age, residency and citizenship requirements” of the Constitution.
The case reminded some election law scholars of Bush v Gore, the 2000 decision that handed the presidency to Bush.
“Once again the Supreme Court is being thrust into the centre of a US presidential election,” said Richard L. Hasen, a law professor at the University of California, Los Angeles. “But, unlike in 2000, the general political instability in the United States makes the situation now much more precarious.”
This article originally appeared in The New York Times.
Written by: Adam Liptak
©2023 THE NEW YORK TIMES
