Trump Should Be Off the Ballot in Colorado, State Supreme Court Rules
“We are mindful of the magnitude and weight of the questions now before us.”
ON TUESDAY, THE COLORADO SUPREME COURT reversed a lower court ruling that Donald Trump cannot be kept off the presidential ballot in the state next year. Both the lower court and the Colorado Supreme Court agreed on a key fact: that Trump engaged in an insurrection or rebellion within the meaning of Section 3 of the Fourteenth Amendment, which bans such people who previously took an oath to support the Constitution from holding office again.
The Colorado Supreme Court departed from the lower court’s ruling on one technical question: whether the office of the president—and someone who has already taken an oath as president—are covered by Section 3. The district court had said no. The Colorado Supreme Court said yes. Trump meets all the criteria, it held, so he “is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary [of State] to list him as a candidate on the presidential primary ballot.”
It made the following additional rulings—some of which may prove of interest to the U.S. Supreme Court if the case makes its way there:
Colorado’s election law creates a legal mechanism for challenging Trump’s eligibility for the Colorado ballot. This is an important distinction between Colorado and other states—such as Minnesota, in which a court ruled last month that political parties have unlimited power to decide who gets to be on the ballot in that state. Keep in mind that there exists no national law passed by Congress that enables legal challenges to Trump’s eligibility. Whether and how the question can get before state court judges differs state by state. For this reason, even if the U.S. Supreme Court takes up an appeal (which Republican Senator J.D. Vance of Ohio is already urging, presumably on the belief that the conservative-leaning Court will side with Trump), it would only affect states whose laws allow such suits in the first place.
The Colorado Supreme Court, unlike another court in Michigan that rejected a Section 3 challenge, held that Congress does not need to enact a nationwide cause of action for courts to litigate the meaning of Section 3. This is an issue that the U.S. Supreme Court could take up, and if it sides with the Michigan court, it would be a win for Trump because of course Congress will do no such thing.
The question of Trump’s eligibility for the ballot under Section 3 is not a “political question” that judges cannot decide. This is a made-up concept that the U.S. Supreme Court has used, for example, to ban lawsuits challenging political gerrymandering. Although this doctrine has value in certain cases, invoking it here would again be a win for Trump, because it would effectively mean that Section 3 is unenforceable through the courts, period.
Keep up with all our coverage of the court cases relating to Trump’s name on the ballot.
Four justices made up the majority. There were three separate dissenting opinions. (It’s worth noting that all seven of the justices were appointed by Democrats, as Colorado governors appoint the justices for ten-year terms, and the last Republican governor left office in 2007.) Here’s what the dissenters said:
Chief Justice Brian Boatright disagreed that Colorado’s election laws allowed the lawsuit in the first place. Justice Maria Berkenkotter wrote separately to make the same point, which is purely about state law, so it’s not one that the U.S. Supreme Court is likely to focus on.
Justice Carlos Armandour Samour Jr.—relying on an opinion involving Section 3 drafted in 1869 by Salmon P. Chase, chief justice of the United States, while he was “riding circuit” as an intermediate appeals court judge—argued that using Colorado’s election laws to allow the Section 3 challenge violates Donald Trump’s constitutional right to due process. There’s one foundational flaw here, which is that due process attaches to protect a person’s life, liberty, or property from being arbitrarily taken by the government without some sort of proceeding, like a trial. There is no constitutional right to hold any job, including public office. It’s not clear that it involves life, liberty, or property at all. Samour nonetheless believes that complete fact discovery and a full trial are required before a candidate can be kept off the ballot. Because “most other states don’t have the Election Code provisions we do,” Trump will remain on the ballot in a hodgepodge of states, “thereby risking chaos in our country.” Only Congress, he says, can enable lawsuits to enforce Section 3.
Samour goes on to suggest that the only mechanism that might work is 18 U.S.C. § 2383, the federal criminal statute providing that “whoever incites . . . or engages in any rebellion or insurrection . . . shall be incapable of holding any office under the United States” (and can go to jail for up to ten years). But get this: Special Counsel Jack Smith didn’t charge Trump with this crime, so even though nothing in Section 3 suggests it was necessary, Samour’s argument throws a wrench in this already bizarre situation, one that could be potentially awkward for Smith and the Justice Department.
Whether the U.S. Supreme Court will take this case, and how the justices would rule, is anyone’s guess. The easy out would be to deny the appeal on the rationale that voting eligibility is for the states to decide under state law, or that the bigger questions need to percolate more at the state level before the Court could be bothered. With Colorado’s primary on March 5, this approach would be a legal loss for Trump. (The politics are harder to divine at this point: The ruling could prove a political boon for him, galvanizing MAGA voters and lots of money.) But stepping aside is a move that could possibly assist the Supreme Court itself, whose legitimacy has steadily weakened since it effectively decided a presidential election in 2000, telling the state of Florida in Bush v. Gore that it could not enforce its own laws governing its own elections.