The Colorado Supreme Court voted 4-3 yesterday to uphold a lower court’s ruling preventing former President Donald Trump from appearing on the state ballot for the upcoming Presidential election. The lower court had made a finding that Trump was involved in an “insurrection” against the United States; hence, based upon the post-Civil War 14th Amendment, where Section 3 disallowed any person who has “engaged in insurrection” or given aid to enemies to hold public office. Colorado’s Supreme Court did not challenge the lower court’s finding.
Trump has not even been charged with “insurrection” in all the indictments handed down against him—let alone found guilty of that crime. But due process seems to be a lost art in Colorado. The lower court found that on Jan. 6, 2021, Trump organized the demonstrators and incited them to breach the Capitol Building. Previously, courts in both Minnesota and Michigan ruled that Trump could not be taken off the ballot, so this Colorado ruling is a first.
There is more than enough room for the U.S. Supreme Court to challenge Colorado’s expansive interpretation of “insurrection.” Once the door is opened this wide, what is to stop any candidate for any public office who, e.g., contributed to, or even forwarded an email from, Jewish groups against Israel’s President Netanyahu, from being thrown off the ballot on grounds of giving aid to enemies of the U.S.?
The Supreme Court also has the less substantive, technical avenue of simply deciding that the 14th Amendment only speaks to barring the holding of office, and that a state cannot depend upon it to prevent someone from campaigning for an office or appearing on a ballot. Separately, Sen. Thom Tillis (R-SC) is introducing a “Constitutional Election Integrity Act” that would deny states the ability to make such rulings, putting them solely in the hands of the federal courts.
It was noted in press coverage that all four votes to uphold banning Trump from the ballot were from Democratic judges. However, as legal scholar Jonathan Turley noted, the three “no’ votes were themselves from liberal Democrat judges who acted on constitutional grounds and, as such, are to be praised.
Colorado has a Jan. 5 deadline for printing up its ballots. Since the court apparently made its ruling “subject to any further appellate proceedings,” it is possible that the state would not exclude Trump from the Jan. 5 printing, if the Supreme Court is still proceeding on the matter.
The press release yesterday from Trump campaign spokesperson Steven Cheung said: “The Colorado Supreme Court issued a completely flawed decision tonight and we will swiftly file an appeal to the United States Supreme Court and a concurrent request for a stay of this deeply undemocratic decision. We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these unAmerican lawsuits.”