Tuesday, December 19, 2023

Colorado to Trump: Drop dead

 The Colorado Supreme Court just threw a monkey wrench - if not a hand grenade - into the 2024 elections. On Tuesday, the court ruled that Donald Trump was ineligible to appear on the state ballot due to his participation in the January 6 insurrection. The court held that Trump was barred from running for office due to the 14th Amendment’s ban on allowing people who “have engaged in insurrection or rebellion… or given aid or comfort to the enemies” of the United States from holding office.

Some of you may recall that I discussed the 14th Amendment ban in August after two law professors wrote a law review article detailing their belief that Trump was ineligible. Since then, the theory has been tested in several jurisdictions, but Colorado is the first to remove Trump from the ballot.

man in black suit jacket
Photo by Markus Spiske on Unsplash

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In the 4-3 ruling, the majority held that “President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President (Mike) Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”

“We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection,” the majority continued. “President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary.”

The opinion can be read in full here: https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf

Because an appeal is a certainty, the court granted a temporary stay until January 4. CNN notes that January 5 is the statutory deadline to finalize the list of Republican candidates for the state’s Super Tuesday primary on March 5. As Election Day approaches, ballots have to be prepared, candidates have to have time to campaign, and courts will increasingly consider the Purcell principle, a doctrine that holds that courts should not change election rules in the period just before an election to avoid confusing voters and creating problems for election administrators.

Colorado’s decision only affects Colorado, but with similar cases pending in other states (and there will probably be more such lawsuits filed tomorrow), the Colorado ruling will almost certainly lead the Supreme Court to consider the case. Now that one state has affirmed the merits of the case against Trump, it will be difficult for the high court to duck the constitutional question that has immediate national implications.

Ironically, the case may turn, not on Trump’s actions, which as the Colorado court notes are not disputed, but on a more technical legal question. As I have watched the cases unfold since August, it has become apparent that Trump’s best defense might be to argue that the president is not an officer of the United States.

This may seem counterintuitive but the 14th Amendment spells out a long list of of offices that are covered by the amendment’s ban. These include “Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, 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….”

One office is conspicuous in its absence from the list: President. Thus the question becomes whether the list is all-encompassing or whether the phrase “any office, civil or military, under the United States” includes the presidency.

In my opinion, it is inconceivable that the framers of the amendment would ban traitors from holding any office from senator down to state judge but be okay with an insurrectionist being president. It seems more a failure of imagination to consider that either party would be stupid enough to nominate a man who tried to overthrow the government rather than giving a pass to rebellious politicians.

Consider this: Would the Congress in 1868 have intended to make it possible for Jefferson Davis to be ineligible to hold office as a senator but not to become president? That defies logic.

The political implications of the Colorado ruling are also unknown at this point. So far, Donald Trump has been the heavy favorite in Republican polling around the country. Will the possibility that their presumptive nominee might not be on the ballot in several states be enough to sway primary voters toward other candidates? It may be more likely that Republicans continue to circle the wagons and rally around Trump even more as they did after his indictments, an FU to the Colorado court, the left, the Democrats, and pretty much the entire nontrumpy segment of the country.

The one certainty in this entire mess is that the controversy won’t end with the Colorado ruling. The legal wrangling over ballots in the Centennial State and around the country has only just begun.

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For more background, read my August ‘splainer on the 14th Amendment:

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