There were two fundamental flaws in the Colorado Supreme Court’s 4–3 decision removing former President Donald Trump from the Colorado 2024 election ballot. The first was that the justices reversed the lower court without seriously addressing the issue that the lower court found decisive.
The second was that the proceeding, like some others against the former president, didn’t grant him adequate due process.
Before getting deeper into those subjects, let’s examine how the case arose and mention some things the Colorado justices did get right.
The petitioners argued that the expedited procedure could be used to remove a candidate not qualified for the office he seeks. This argument probably was correct. However, qualification lawsuits usually center on straightforward questions such as “Does the candidate live in the district?” and “Does the candidate meet the age requirement?” The issues in the Trump case were far more complicated.
The plaintiffs argued that President Trump had “engaged in insurrection” against the United States, and was thus disqualified by Section 3 of the 14th Amendment. That section provides (note the italicized words):
After expedited proceedings, the trial judge found that President Trump engaged in insurrection during the days leading up to Jan. 6, 2021. But the judge also concluded that the presidency wasn’t covered by Section 3 of the 14th Amendment. The judge noted that Section 3 mentions members of Congress and presidential electors but doesn’t mention the president. So the presidency is covered only if it’s an “office under the United States.” After examining the Constitution’s text and historical evidence, she concluded that, although the president is an “officer,” he isn’t an “officer under the United States” as the Constitution uses that phrase.
What the Colorado Supreme Court Got Right
On Dec. 19, the Colorado Supreme Court issued its opinion per curiam—that is, ”for the court.” This means no single person was the author. Four of the seven justices signed onto it. They were Justices Monica Márquez, Melissa Hart, Richard Gabriel, and William W. Hood. The three dissenters each wrote separate opinions. They were Chief Justice Brian Boatright and Justices Carlos Armando Samour and Maria Berkenkotter.The court had to address quite a few issues, requiring a lengthy opinion (133 pages).
The majority got two of those issues right.
The Supreme Court also got a related issue right. The Trump lawyers—and one of the dissenting justices—argued that Section 3 of the 14th Amendment wasn’t “self-executing.” In other words, they argued that it’s a dead letter unless Congress defines and enforces it, which Congress hasn’t done. They point to Section 5 of the 14th Amendment, which gives Congress the power to enforce the amendment by “appropriate legislation.”
There are several problems with that argument. First, the fact that Congress has the power to adopt laws enforcing the amendment doesn’t mean it must do so before the amendment is effective. Second, although the amendment granted Congress the power to remove a disability, it pointedly didn’t grant the power to create a disability. Third, Section 5 is what’s called an “incidental powers” clause. This means its scope is quite limited.
What the Court Probably Did Wrong
Several scholars have concluded that Section 3 of the 14th Amendment doesn’t apply to the president because (they say) the presidency isn’t, in the Constitution’s phrase, an “office under the United States.”What the Court Definitely Did Wrong
President Trump has repeatedly been denied due process of law. This happened in the first and second impeachment trials, and at the House of Representatives’ “Select Committee to Investigate the January 6 Attack on the U.S. Capitol.” (We’ll call it the “Jan. 6 committee.”)And it just happened again in Colorado.
The Colorado trial judge nevertheless allowed the suit to proceed. As a result, she had to determine whether the Jan. 6, 2021, riot really was an insurrection—and, if it was, whether President Trump knowingly promoted it. These are difficult issues, and they require preparation, tested evidence, and time to resolve.
As the dissenting justices pointed out, disqualification for public office is a drastic punishment that should be inflicted only after compliance with all due process standards: timely notification, disclosure of evidence among the parties, an impartial adjudicator, the right to call witnesses, the right to cross-examine, time to prepare, and—because of the seriousness of the punishment—proof beyond a reasonable doubt.
Expedited proceedings might be fine for determining whether a person meets an age requirement, but they’re totally inadequate for trying the complex issue of whether the former president engaged in insurrection. For that reason, the trial judge should have dismissed the case. The correct path for the petitioners would have been to convince a prosecutor to seek a criminal conviction for insurrection or (assuming petitioners have standing) to commence a regular civil proceeding.
Possibly because the expedited hearing time was so limited, the trial judge compounded her mistake by heavy reliance on “evidence” from the Jan. 6 committee. The Colorado Supreme Court’s most serious mistake was approving this procedure.
The committee hearings were staged events designed to destroy a political opponent. Joe Stalin couldn’t have done it better.
The Future
If the Colorado Supreme Court decision survives review by the U.S. Supreme Court—and I suspect it won’t—we can imagine the future. It will be like this:- If the federal or state establishment opposes a popular political candidate, then Congress or the state legislature will conduct a show trial and issue a report “proving” the candidate is guilty of insurrection.
- The candidate’s opponents then will sue in a sympathetic court to remove that politician from the ballot, using the report as “evidence.”
- The court will remove the opposing politician from the ballot, and the voters will never be heard.
