Colorado voters seeking to disqualify Donald J. Trump from the state’s 2024 Republican primary run Tuesday night found themselves grappling with eight separate legal questions. However, to finally exclude him from the ballot, they will almost certainly have to do it again – to the United States Supreme Court.
In a 4-3 decision that sparked a political and legal earthquake, the Colorado Supreme Court ruled Tuesday that Mr. Trump had engaged in insurrection and was therefore barred by the 14th Amendment from holding federal office.
“This is a major and extraordinary decision by a state Supreme Court,” wrote Derek Muller, a law professor at the University of Notre Dame. Electoral law blog. “Never in history has a presidential candidate been barred from voting under Section 3 of the Fourteenth Amendment. Oversight of the United States Supreme Court appears inevitable and puts major pressure on the Court. »
On Tuesday, the majority said all key legal issues were against Mr. Trump.
“The sum of these elements is this: President Trump is disqualified from serving as President,” the majority said in an unsigned opinion, asserting that its efforts to overturn the results of the 2020 election amounted to engaging in an insurrection and that section 3 of the law was invalid. The 14th Amendment, ratified after the Civil War, barred insurrectionists from holding federal office, including the presidency.
The majority added: “We do not reach these conclusions lightly. We are aware of the scale and weight of the issues currently before us. We are also conscious of our solemn duty to enforce the law, without fear or favor, and without being influenced by public reaction to the decisions the law requires us to make.
But the court gave Mr. Trump a temporary escape route. He suspended his decision until Jan. 4, and if he seeks review from the U.S. Supreme Court, as he announced, the state court said his name would remain on the primary ballot.
The justices could take some time to act, and the Colorado Republican primary, scheduled for March, could go ahead unaffected. The judges may have to grapple with the case’s many interrelated legal issues, which are new, complex and extremely consequential. In fact, courts in other states have reached different conclusions on some issues.
Justices may also be reluctant to take away from voters the decision on how to evaluate Mr. Trump’s conduct after the 2020 election.
Section 3 of the 14th Amendment prohibits those who have taken an oath “to support the Constitution of the United States” from holding office if they “have subsequently engaged in insurrection or rebellion against it, or have brought aid or comfort to his enemies. .”
Congress can lift the ban, the provision states, but only by a two-thirds vote in each house.
Although the provision was designed to address the aftermath of the Civil War, it was written in broad terms and, according to most scholars, continues to be in effect. Congress granted broad amnesties in 1872 and 1898. But those acts were retroactive, scholars say, and did not limit the prospective force of Section 3.
A Colorado trial judge had ruled that Mr. Trump had engaged in insurrection, but accepted his argument that Section 3 did not apply to him, finding that Mr. Trump had not lent the correct type of oath and that the provision did not apply to the office. of the presidency.
The Colorado Supreme Court upheld the first part of the trial judge’s ruling – that Mr. Trump engaged in insurrection, including by moving to overturn the result of the 2020 presidential election; try to change the vote count; encouraging false lists of competing voters; pressuring the vice president to violate the Constitution; and calling for the march on the Capitol.
But the majority overturned the part of the trial judge’s ruling that the Section 3 provision did not prevent Mr. Trump from seeking re-election.
This view has its critics. In a opinion article published in the Wall Street Journal in September, Michael B. Mukaseywho served as 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 legislature of any State, or as an 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 said, “refers only to appointed officials, not elected officials.”
In a law review article first published in August, William Baude from the University of Chicago and Michael Stokes Paulsen from the University of St. Thomas, disagreeing with Mr. Mukasey.
Their article concluded that “the ordinary meaning of the text” of the Constitution, “the structure and logic of its provisions”, “the obvious desire to be exhaustive”, “the apparent absurdity of the prospect of exclusion from the functions of president and president”. vice president to trigger disqualification” and other factors “convince us all that the natural conclusion is the correct one: Section 3 includes in its coverage, or in its “trigger” language, insurrectionists who once served as president and vice-president.
They added that “a reading that would make the document a ‘secret code’ laden with hidden meanings discernible only by a select priesthood of the Illuminati is generally unlikely.” »
Other researchers, notably Josh Blackman from the South Texas College of Law in Houston and Seth Barrett Tillman from the University of Maynooth in Ireland, say that section 3 does not cover Mr. Trump. There is, they write, “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 was covered by this provision. “President Trump asks us to maintain that Section 3 disqualifies any insurrectionist who violates his oath of office. except the most powerful and that it bars oath violators from virtually all offices, both 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 considered several other issues. Congress does not need to act to disqualify candidates, he said. Mr. Trump’s electability is not the kind of political question that escapes the jurisdiction of the courts. The House report of January 6 was duly admitted into evidence. Mr. Trump’s speech that day was not protected by the First Amendment, according to the statement.
The court added that states are authorized under the Constitution to evaluate the qualifications of presidential candidates. “If we were to adopt President Trump’s view,” the majority wrote, “Colorado could not 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 experts of Bush v. Gore, the 2000 decision that handed the presidency to Mr. Bush.
“Once again, the Supreme Court is placed at the center of an American 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 today much more precarious.”
