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Colorado Judge: Trump Can’t Be Barred from Ballot Over Jan. 6th
Plus: An update on where all the other Fourteenth Amendment cases stand.
ON FRIDAY, AFTER SEVERAL DAYS of trial involving multiple witnesses and other evidence, a Colorado state court became the fifth to reject an effort to keep Donald Trump off a state presidential ballot under Section 3 of the Fourteenth Amendment, a post-Civil War addition to the Constitution ratified in 1868. It provides: “No person shall . . . hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Because the Colorado case involved lengthy testimony and detailed findings of fact and rulings on the meaning of Section 3, the 102-page decision is worth summarizing at some length. Clearly, Colorado District Judge Sarah B. Wallace wrote with an expectation that judges at higher state courts and likely even the U.S. Supreme Court would wind up studying her analysis on an appeal petition.
Wallace ruled, as a matter of proven fact, that:
Donald Trump “put forth no evidence at the Hearing that he believed his claims of voter fraud despite the overwhelming evidence there was none.”
“Trump knew his claims of voter fraud were false.”
Trump “sought to corruptly overturn the election results through direct pressure on Republican officeholders in various states both before and after the Electoral College met and voted in their respective state.”
“Trump knew that his supporters were angry and prepared to use violence to ‘stop the steal’ including physically preventing Vice President Pence from certifying the election.”
“Despite knowing of the risk of violence and knowing that crowd members were angry and armed, Trump still attended the rally and directed the crowd to march to the Capitol.”
“Trump’s Ellipse speech incited imminent lawless violence.”
Trump’s “call to ‘fight’ and ‘fight like hell’ was intended as, and was understood by a portion of the crowd as, a call to arms.”
“Trump’s conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the United States Capitol.”
Trump’s 2:24 p.m. tweet on January 6th that “‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!’ . . . caused further violence at the Capitol.”
“Trump had the authority to call in reinforcements on January 6, 2021, and chose not to exercise it thereby recklessly endangering the lives of law enforcement, Congress, and the attackers on January 6, 2021.”
And “the Court heard no evidence that Trump did not support the mob’s common purpose of disrupting the constitutional transfer of power.”
On the law, the judge settled upon a legal definition of the term “insurrection” in Section 3: “an ‘insurrection’ at the time of ratification of the Fourteenth Amendment was understood to refer to any public use of force or threat of force by a group of people to hinder or prevent the execution of law.” She also rejected Trump’s alternative definition—that “insurrection” is confined to “the taking up of arms and preparing to wage war upon the United States.” (In other words, Trump’s team argued that only with guns in hand and military plans drawn up could Trump have engaged in an insurrection.)
So, did Trump’s actions before and on January 6th satisfy the definition of an “insurrection”? According to Judge Wallace, they did so “easily.” Moreover, the judge determined that the verb “engage” under Section 3 includes “incitement to insurrection.” And she found “that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech.”
Trump won the case anyway.
Before we get to her ultimate reasoning, it’s worth reviewing why all of this is playing out before a Colorado state court judge in the first place.
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Another part of the Fourteenth Amendment—Section 5—gives Congress the power to pass legislation enforcing Section 3. In theory, that would look like a statute authorizing certain plaintiffs to file a lawsuit in federal court challenging someone’s eligibility for office. No such federal law exists on the books. As a result, litigants are filing lawsuits under a hodgepodge of state laws, seeking to ban Trump from running in enough states to force the Republican party to back a different candidate for president.
Eric Foner, professor of history at Columbia University, explained the rationale behind Section 3 this way:
Section Three reached directly into the state and federal governments to try to weaken the Southern ruling class (known to Republicans as the Slave Power) in the wake of the Civil War. It aimed to ensure political power was held by those truly loyal to the nation and to the principles of liberty and equality so powerfully strengthened by Union victory and the destruction of slavery. White Southerners, said Joseph H. Defrees, a Republican member of Congress from Indiana, must henceforth elect officials who had “some regard for the principles that are contained in the Declaration of Independence.”
It doesn’t take a historian to draw the logical conclusion that Trump is a dire threat to the nation under the spirit of Section 3. As Foner emphasized, moreover, the language of Section 3 contains no express exception for presidents.
Wallace saw Section 3’s coverage differently, however, ruling that—despite expert historical testimony that “the Presidency was understood as an ‘office, civil or military, under the United States’” at the time the Fourteenth Amendment was adopted—Section 3’s silence regarding presidents is dispositive. The language specifically refers to “Senator or Representative in Congress, or elector of President and Vice-President,” but not presidents. The only possible word that captures presidents is the “catchall” word, “officer.” In Judge Wallace’s view, “officer” does not include the office of the president of the United States because, first, there are other provisions in the Constitution that use the word “officers” in a way that indicates the president is not to be considered one, and second, if the Fourteenth Amendment’s framers really wanted to include presidents, they would have said so explicitly.
BECAUSE THE LAW SAYS NOTHING ABOUT how Section 3 actually works, judges are all over the place as to why Section 3 so far can’t keep Trump off state ballots. Expect the confusion to continue, as more than a dozen cases remain pending across the country—including in Alaska, Arizona, Connecticut, Delaware, Kansas, Massachusetts, Montana, Nevada, New Jersey, New Mexico, New York, South Carolina, Texas, Vermont, Virginia, West Virginia, and Wisconsin.
Here’s what other courts have ruled thus far about Trump and Section 3:
Earlier this month, the Minnesota Supreme Court rejected a bid to keep Trump off the state’s primary ballot, but for a different reason than Wallace’s: that “there is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot . . . a candidate who is ineligible to hold office.” Translated, the Republican party is fully in charge of who gets on the primary ballot. Yet Minnesota Chief Justice Natalie Hudson noted that the plaintiffs could file another suit later to keep Trump off the general election ballot should he win the Republican primary in Minnesota.
In Michigan, Court of Claims Judge James Redford took a different route altogether, ruling that courts have no business deciding what Section 3 means because it’s a “political question” that exclusively belongs to Congress. (The political question doctrine is a made-up rule the Supreme Court uses if it just doesn’t want to wade into sticky political issues like crafting the technical rules governing an impeachment trial, for example.) However, if Trump wins the general election, Redford added, his eligibility under Section 3 could be revisited, and if he’s then determined ineligible, the Twentieth Amendment—which provides for the vice president-elect to become president if a president-elect dies before taking the oath of office—could somehow kick in.
In New Hampshire, a federal judge ruled in October that John Anthony Castro, an unknown presidential candidate from Texas who has initiated over two dozen Section 3 lawsuits across the country, did not have standing to sue under Article III of the U.S. Constitution—meaning he lacked a sufficient injury to bring the matter within Article III’s “case” or “controversy” requirement that gives federal courts jurisdiction in the first place. The judge wrote: “Castro has not established that he has or will suffer a political competitive injury arising from Trump’s participation in the New Hampshire Republican presidential primary.” In addition, he agreed with the Michigan state court judge that the matter is probably a “political question” that’s for elected politicians—not judges—to decide.
Finally, in Florida, another federal judge dismissed a case for lack of standing in September. The plaintiff in that case was an individual citizen who, the judge ruled, had no legal basis to complain about another person’s running for office. A “generalized interest” in the election outcome is not enough of an injury to invoke the power of the courts.
All these cases will undoubtedly be appealed.
SO WHERE DO THINGS STAND NOW?
The cases involving dismissals for lack of standing mean little because the courts didn’t get to the meaty questions of what the words “insurrection,” “engage,” and “officer” mean.
As Judge Wallace’s well-written opinion makes clear, there’s no serious factual or legal argument that Trump didn’t engage in an insurrection. The real legal fight remains around the word “officer”—for which there’s no clear answer in the text of the Constitution itself—and whether the entire thing should stay out of the courts and left to voters, the Republican party, and Congress.
Foner appropriately noted that although Section 3 “fell into disuse” after Reconstruction, “it remains in the Constitution.” To suggest that Section 3 should be ignored because it’s just too politically volatile is a snub to the Constitution itself. Nonetheless, these cases regarding Section 3 send an urgent message to voters: The fate of American democracy is in your hands. Neither the courts nor the Constitution can be counted on to come to the rescue.