Colorado ruling knocks Trump out of the ballot: What it means, what happens next
Colorado voters seeking to disqualify Donald J. Trump from the 2024 Republican primary raised eight different legal issues Tuesday evening. But to ultimately keep him off the ballot, they will almost certainly have to do it again — at the U.S. Supreme Court.
In a 4-on-3 decision causing a political and legal earthquake, the Colorado Supreme Court said Tuesday that Mr. Trump engaged in an insurrection and was therefore barred from holding federal office by the 14th Amendment.
“This is a great and extraordinary asset for a state Supreme Court,” wrote Derek Muller, a law professor at the University of Notre Dame, on the Blog about voting rights. “Never in history has a presidential candidate been barred from voting under Section 3 of the Fourteenth Amendment. A review by the United States Supreme Court appears inevitable and puts great pressure on the court.”
The majority said Tuesday that every major legal issue came 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 his efforts to overturn the 2020 election results amounted to participating in an insurrection and that Section 3 of the 14th Amendment, ratified after the Civil War, bans insurgents from federal office, including the presidency.
The majority added: “We do not come to these conclusions lightly. We are aware of the magnitude and weight of the questions now before us. We are also aware of our solemn obligation to apply the law, without fear or favour, and without being influenced by public reactions to the decisions that the law requires us to make.”
But the court gave Mr. Trump a temporary escape route. It has stayed his ruling through Jan. 4, and if he seeks review at the U.S. Supreme Court, as he said, the state court said his name would remain on the first ballot.
It may take some time for the justices to act, and Colorado’s Republican primary, scheduled for March, could continue unabated. The justices may have to deal with the case’s many interlocking legal issues, which are new, complex and extraordinarily consequential. Courts in other states have even reached different conclusions on some questions.
The justices may also be reluctant to deprive voters of the decision on how to judge Mr. 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 have subsequently “participated in insurrection or rebellion against the same, or given aid or comfort to its enemies. .”
Congress can lift the ban, the provision says, but only with a two-thirds majority in each chamber.
Although the provision was intended to address the aftermath of the Civil War, it was written in general terms and, according to most scholars, still has force. Congress granted broad amnesties in 1872 and 1898. But these acts were retroactive, scholars say, and did not limit the future power of Section 3.
A Colorado judge had ruled that Mr. Trump was guilty of insurrection, but accepted his argument that Section 3 did not apply to him, reasoning that Mr. Trump had not taken the right kind of oath and that the provision did not apply to the position. of the presidency.
The Colorado Supreme Court upheld the first part of the judge’s ruling – that Mr. Trump engaged in insurrection, including by overturning the results of the 2020 presidential election; trying to change the number of votes; encouraging false slates from competing voters; pressuring the vice president to violate the Constitution; and called for the march on the Capitol.
But the majority reversed the part of the judge’s decision that said the Section 3 provision did not bar Mr. Trump from seeking re-election.
That view has its critics. In a op-ed published in The Wall Street Journal in September, Michael B. Mukaseywho was attorney general under President George W. Bush, wrote that Section 3 is limited to people who have 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 executive or judicial officer of any state.”
The only category that even arguably applies to Mr. Trump is “an officer of the United States,” Mr. Mukasey wrote. But that phrase, he claimed, “applies only to appointed officials, not elected officials.”
In a law overview article first published in August, Willem Baude from the University of Chicago and Michael Stokes Paulsen from the University of St. Thomas, I disagree with Mr. Mukasey.
Their article concluded that “the plain meaning of the text” of the Constitution, “the structure and logic of its provisions,” “its manifest design to be comprehensive,” “the apparent absurdity of the prospect of exclusion from the offices of president and vice president of bringing about the disqualification” and other factors “all convince us that the logical conclusion is the correct one: Section 3 includes in its messaging, or “triggering” language, insurgents who once served as president and vice president have served as president.”
They added that “a reading that makes the document a ‘secret code’, loaded with hidden meanings discernible only by a select priesthood of illuminati, is generally unlikely.”
Other scholars, in particular Jos Zwartman from South Texas College of Law Houston and Seth Barrett Tillman from Maynooth University in Ireland, say that part 3 does not refer to Mr. Trump. There is, they wrote, “substantial evidence that the President is not an ‘officer of the United States’ within the meaning of Section 3.”
The Colorado Supreme Court ruled that the provision covers the presidency. “President Trump asks us to state that Section 3 disqualifies any oath-breaking insurrectionist except the most powerful and that it bans oathbreakers from virtually every office, state and federal, except the highest in the country. Both results are inconsistent with the plain language and history of Section 3.”
The state Supreme Court has addressed a number of other issues. Congress does not need to act to disqualify candidates, the report said. Mr. Trump’s eligibility is not the kind of political issue that falls outside the jurisdiction of the courts. The report of the House of Representatives of January 6 was rightly admitted into evidence. Mr. Trump’s speech that day was not protected by the First Amendment, the report said.
The Court added that states have the authority under the Constitution to assess the qualifications of presidential candidates. “If we were to adopt President Trump’s position,” the majority wrote, “Colorado would not be able to exclude from the ballot even candidates who clearly do not meet 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 Mr. Bush.
“Once again, the Supreme Court is being placed at the center of the U.S. 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 now makes the situation much more precarious.”