Colorado ruling kicks Trump off the ballot: What it means and what happens next

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Colorado voters who sought to disqualify Donald J. Trump from the state's 2024 Republican primary won Tuesday night on eight separate legal issues. However, to finally keep him out of the election, they will almost certainly have to do it again, before the US Supreme Court.

In a 4-3 decision that is a political and legal earthquake, the Colorado Supreme Court said Tuesday that Trump had participated in an insurrection and was therefore barred from holding federal office by the 14th Amendment.

“This is an important and extraordinary decision by a state supreme court,” Derek Muller, a law professor at the University of Notre Dame, wrote on the Election Law Blog on Tuesday afternoon. “Never in history has a presidential candidate been excluded from the ballot under Section 3 of the Fourteenth Amendment. Review by the United States Supreme Court seems inevitable and puts great pressure on the court.”

The majority said Tuesday that all the key legal issues were raised against Trump.

“The sum of these parts is this: President Trump is disqualified from serving as president,” the majority said in an unsigned opinion, saying his efforts to overturn the 2020 election results amounted to engaging in a insurrection and that Section 3 of the 14th Amendment, ratified after the Civil War, prohibits insurrectionists from holding federal office, including the presidency.

The majority added: “We do not reach these conclusions lightly. We are aware of the magnitude and weight of the issues now before us. Likewise, we are aware of our solemn duty to apply the law, without fear or favor, and without being swayed by the public reaction to the decisions that the law requires us to make.

But the court gave Trump a temporary escape route. He put his ruling on hold until Jan. 4, and if he seeks review in the U.S. Supreme Court, as he said he will, the state court said his name would remain on the primary ballot.

It could take some time for the judges to act, and Colorado's Republican primary, scheduled for March, could continue unaffected. The justices may have to grapple with the case's many intertwined legal issues, which are novel, complex and extraordinarily consequential. In fact, courts in other states have reached different conclusions on some of the issues.

Judges may also be reluctant to take away from voters the decision of how to evaluate 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 public office if they later “engaged in an insurrection or rebellion against the same, or gave aid or comfort to its enemies.” .”

Congress can eliminate the ban, the provision says, but only with a two-thirds vote in each chamber.

Although the provision was devised to address the aftermath of the Civil War, it was written in general terms and, according to most scholars, remains strong. Congress granted broad amnesties in 1872 and 1898. But those laws were retrospective, scholars say, and did not limit Section 3's potential force.

A Colorado trial judge had ruled that Trump had participated in an insurrection, but accepted his argument that Section 3 did not apply to him, reasoning that Trump had not sworn the right kind of oath that the provision did not apply. in charge of the presidency.

The Colorado Supreme Court upheld the first part of the trial judge's ruling: that Trump engaged in an insurrection, including by seeking to overturn the result of the 2020 presidential election; attempting to alter the vote count; encourage false lists of competing voters; pressure the vice president to violate the Constitution; and calling for the march to the Capitol.

But the majority overturned the part of the trial judge's decision that said the Section 3 provision did not prevent Trump from seeking re-election.

That view has its critics. In an op-ed published in The Wall Street Journal in September, Michael B. Mukasey, who was attorney general under President George W. Bush, wrote that Section 3 is limited to people who had sworn 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 an executive or judicial officer of any state.”

The only category that could be said to apply to Trump is “United States official,” Mukasey wrote. But that phrase, he stated, “refers only to appointed officials, not elected officials.”

In a law review article first published in August, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas disagree with Mr. Mukasey.

His article concluded that “the ordinary meaning of the text” of the Constitution, “the structure and logic of its provisions,” “the evident design of being comprehensive,” “the apparent absurdity of the prospect of exclusion from the offices of president and vice president of triggering disqualification” and other factors “all convince us that the natural conclusion is the correct one: Section 3 includes in its coverage, or 'trigger' language, insurrectionists who once served as president and vice president.

They added that “a reading that turns the document into a 'secret code' loaded with hidden meanings discernible only by a select Illuminati priesthood is generally improbable.”

Other scholars, notably Josh Blackman of South Texas College of Law in Houston and Seth Barrett Tillman of Maynooth University in Ireland, say Section 3 does not cover Trump. There is, they wrote, “substantial evidence that the president is not an 'official of the United States' for purposes of Section 3.”

The Colorado Supreme Court ruled that the presidency is covered by the provision. “President Trump asks us to maintain that Section 3 disqualifies any insurrectionist who breaks the oath. except the most powerful and that prohibits oath breakers from virtually all positions, both state and federal, except the tallest on earth. Both results are inconsistent with the plain language and story of Section 3.”

The state Supreme Court addressed several other issues. Congress does not need to act to disqualify candidates, he said. Trump's eligibility is not the kind of political question that is outside the jurisdiction of the courts. The House report of January 6 was properly admitted into evidence. Trump's speech that day was not protected by the First Amendment, he said.

The court added that states are authorized by the Constitution to evaluate the qualifications of presidential candidates. “If we were to adopt President Trump’s view,” 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 electoral law scholars of Bush v. Gore, the 2000 decision that handed the presidency to Bush.

“Once again, the Supreme Court is being thrust into the center of an American presidential election,” said Richard L. Hasen, a law professor at the University of California, Los Angeles. “But unlike 2000, general political instability in the United States makes the situation now much more precarious.”



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