The Colorado Supreme Court’s decision is unlikely to be upheld by the US Supreme Court, but this issue is not going away.
On Tuesday evening, Colorado’s highest court handed down a stunning decision holding that former President Donald Trump “is disqualified from holding the office of President” under Section Three of the 14th Amendment to the United States Constitution. Because of this, the court determined that Trump’s name may not appear on the 2024 Republican primary ballot.
Broadly speaking, the 14th Amendment prohibits former high-ranking government officials who “have engaged in insurrection or rebellion” against the Constitution of the United States from serving in high office again. The court determined that Trump’s incitement of the January 6, 2021, attack on the Capitol meets the Constitution’s definition of an “insurrection.”
The case is called Anderson v. Griswold, and it would be quite surprising if the Supreme Court didn’t take up this case.
The questions the Court will need to consider in Anderson, and most likely in future cases questioning whether Trump is eligible to be president, are novel and difficult. But there is a very strong formal legal argument, based on the text of the 14th Amendment, that Trump’s attempt to overthrow a presidential election does disqualify him from office.
That said, there are serious procedural flaws with the process Colorado’s courts used to determine that Trump is ineligible. This does not mean that Trump should ultimately be allowed to run for president in 2024, but it does suggest that the US Supreme Court should reverse the Colorado justices’ Anderson opinion and defer resolution of whether or not Trump is eligible for a future case.
And there is also a strong practical argument against allowing Trump to be removed from the ballot, at least before he is convicted of a crime arising out of his violation of his oath to “protect and defend the Constitution of the United States.” As my colleague Zack Beauchamp has warned, “There is little reason to believe courts enjoy enough legitimacy among Republicans (or Democrats, for that matter) to be in a position to kick a major-party candidate off the ballot.”
In short, the Constitution says that public officials who participate in an insurrection may not seek high office again. But it neither lays out what process should be used to determine who engaged in an insurrection, nor does it define key terms like the word “insurrection.” And that creates a nightmarish challenge for courts considering whether Trump may run for president again.
The Colorado Supreme Court’s decision is likely to be reversed by the US Supreme Court — and it should be reversed on narrow procedural grounds
Let’s be clear about one thing up front: It is unlikely that the Colorado justices’ decision to kick Trump off the ballot will survive an appeal — although the question of whether Trump is eligible for president could very well arise again if a prosecution charging Trump with attempting to steal the 2020 election is successful.
The Colorado Supreme Court is ideologically very unlike the nation’s highest Court. Every member of the state’s Supreme Court was appointed by a Democratic governor, while the US Supreme Court has a two-thirds Republican supermajority.
This does not mean that the Colorado justices are all knee–jerk Democrats. To the contrary, Colorado’s judicial appointments process is designed to diminish the role of partisanship in judicial selection — while governors make the final choice of who may sit on the state Supreme Court, they must choose a new justice from a short list of names provided to them by a nonpartisan commission. That means that Democratic governors typically cannot pick their own loyalists, but they can also veto candidates who are too sympathetic to the Republican Party.
In the federal system, by contrast, potential justices are carefully vetted by the White House to ensure that they share the same broad approach to legal interpretation preferred by the president’s party. That doesn’t mean that every Supreme Court justice is a hack. Among other things, a president choosing a justice in 2017 could ensure that this justice holds the same views that the Republican Party held in 2017, but he couldn’t anticipate which new issues might arise before the Court in 2024, or how a justice with life tenure might approach them.
Nevertheless, federal justices are political appointees selected to advance a political agenda. And the US Supreme Court does not have the same safeguards against partisan appointments that exist in Colorado. There is no one like Justice Samuel Alito, a rank partisan who reflexively votes for Republican causes in contentious cases, on the Colorado Supreme Court. And there are obviously no Trump appointees on the state Supreme Court, while there are three on the US Supreme Court.
Meanwhile, the Colorado court’s decision was 4-3. That means that, even in a court where Republicans played a diminished role in selecting the justices, Colorado’s justices split almost down the middle on whether to disqualify Trump.
And the US Supreme Court won’t even have to try very hard to reject the Colorado Supreme Court’s decision. While it is questionable whether the Constitution permits Trump to seek the presidency again, Trump has a very strong argument that he was denied adequate due process in Colorado’s state court system.
The trial court that heard this case conducted a hearing using an expedited process that, as Justice Carlos Samour writes in a dissenting opinion, lacks “basic discovery, the ability to subpoena documents and compel witnesses, [and] workable timeframes to adequately investigate and develop defenses.” As he and other dissenting justices argue, this truncated process is inadequate for a determination as monumental as whether or not a former president may be disqualified for office.
The purpose of this expedited process is to allow state courts to quickly process challenges to a candidate’s eligibility to appear on the ballot when an election date is looming, but it has historically not been used for issues as complex as the one presented in the Anderson case. In contrast, as Justice Maria Berkenkotter writes in her own dissenting opinion, the expedited process “up until now has been limited to challenges involving relatively straightforward issues, like whether a candidate meets a residency requirement for a school board election.”
All of this said, the fact that the Anderson decision rests on a flawed process does not mean that the underlying issue presented by this case — whether Trump is constitutionally disqualified from becoming president again — will not be presented by a future case. Indeed, there is a legal proceeding going on right now, Trump’s federal criminal trial for attempting to overthrow the 2020 election, that will provide Trump with more than adequate due process.
Should Trump be convicted of attempting to overthrow that election, the trial judge could potentially disqualify Trump from serving as president as part of his sentence. Or another court could determine, based on the fact that Trump was convicted of attempting to subvert the United States Constitution’s process for choosing presidents, that Trump is disqualified from holding office again.
But the procedural flaws with Colorado’s truncated process are serious, and they provide the US Supreme Court with an entirely appropriate reason to defer the question of whether Trump is eligible to be president until after his criminal trial is resolved.
Okay, so the Colorado process wasn’t great, but does the Constitution actually disqualify Trump from holding office again?
Section Three of the 14th Amendment provides that no one who served as an “officer of the United States,” in a role that requires them to swear an oath “to support the Constitution of the United States,” may serve in high office again if they “shall have engaged in insurrection or rebellion” against the Constitution.
The argument that Trump is disqualified from office is fairly straightforward. He was the president, an office that required him to swear an oath to “preserve, protect and defend the Constitution of the United States.” He then broke this oath by attempting to nullify the constitutionally mandated process for selecting a president in 2020 and by inciting his followers into a violent attack on the Capitol.
The primary weakness in this argument is that it has little support in federal case law — in part because the United States has, since the 1860s, been fortunate enough not to experience insurrections or rebellions led by high-ranking public officials. And what little case law does exist cuts against the Colorado Supreme Court’s decision.
The primary federal case cited by both the majority and some of the dissenting opinions in Anderson is In re Griffin (1869), a decision that is more than 150 years old. And Griffin isn’t even a Supreme Court decision (it was authored by Chief Justice Salmon Chase, but in an era where justices frequently acted as ordinary trial or appellate judges).
Much of Chase’s reasoning in Griffin tracks the arguments raised by the dissenters in Anderson. Chase essentially argued that the Constitution affords due process rights to anyone suspected of engaging in insurrection, so there must be some kind of judicial or other proceeding to determine whether an alleged insurrectionist actually participated in such an attack on the nation before they are disqualified from holding office.
Fair enough, but then Chase goes a step further, claiming that “legislation by congress is necessary” to determine what sort of process should be afforded to accused insurrectionists. Because Congress has not enacted a statute laying out such a process, Griffin suggests that there is no court — or any other body — that can determine who is disqualified from office under the 14th Amendment.
Again, Griffin is not a Supreme Court decision and does not bind the Colorado courts (or the US Supreme Court, for that matter). And its implications are hard to swallow. As law professors William Baude and Michael Stokes Paulsen, two prominent conservative scholars, argue in a paper claiming that Trump is disqualified from holding office, “Griffin’s Case is a case study in how not to go about the enterprise of faithful constitutional interpretation.”
But that does not change the fact that Griffin looms over the 2024 election like the Sword of Damocles, ready to fall upon any attempt to disqualify Trump if five justices are looking for a reason to save him.
The Constitution, moreover, does not define key terms used by the 14th Amendment, such as the word “insurrection” or what it means to have “engaged in” such an insurrection. So the Colorado justices were forced to rely on dictionaries and old statements by long-dead public officials to determine what these terms might mean.
An “insurrection,” the Anderson majority opinion claims after quoting from several dictionary definitions, “would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
Meanwhile, a majority of the state Supreme Court concludes that Trump “engaged in” an insurrection because he spent months lying to his supporters, claiming that the 2020 election was “rigged” before it even happened, encouraging them to “fight,” suggesting that Democrats would “fight to the death” if the shoe were on the other foot, and specifically naming then-Vice President Mike Pence as someone who should be targeted by the pro-Trump mob that invaded the Capitol.
Though Trump did not enter the Capitol himself on January 6, the Colorado justices quote several documents suggesting that these actions are enough to qualify as an “insurrection,” including an opinion by Attorney General Henry Stanbery, who was in office shortly after the Civil War, which concluded that “[d]isloyal sentiments, opinions, or sympathies would not disqualify” a person from office under the 14th Amendment. “But when a person has, by speech or by writing, incited others to engage in rebellion, [h]e must come under the disqualification.”
Is this enough evidence to justify reading the 14th Amendment to disqualify Trump (assuming, of course, that Trump has received adequate process)? Sure. In the absence of any binding case law to the contrary — and only a poorly reasoned and unbinding court opinion pointing in the other direction — the Anderson majority makes an entirely plausible case that Trump cannot become president again.
But, as the four Colorado justices in the majority also acknowledge, their decision travels “in uncharted territory, and … this case presents several issues of first impression.” Ultimately, the US Supreme Court will have the final word on whether Trump is disqualified. And there’s no guarantee that a Court dominated by Republican political appointees will accept the Colorado Supreme Court’s reasoning.
So what happens next?
For the moment, nothing will happen. The Colorado Supreme Court stayed its decision until January 4, which it identified as “the day before the Secretary’s [of State’s] deadline to certify the content of the presidential primary ballot.” And it also ruled that this “stay shall remain in place” if Trump or another litigant seeks US Supreme Court review of this case prior to January 4.
It is unlikely that the US Supreme Court will avoid this case, both because of the hugely consequential issue it presents and because of the troubling implications of allowing state courts to have the final word on who is disqualified from seeking the highest federal office. If Colorado’s Supreme Court can have the final word on whether Trump can appear on the 2024 ballot, a state Supreme Court controlled by Republicans can just as easily manufacture a reason to remove President Joe Biden — or anyone else who challenges Trump’s right to rule.
Only the US Supreme Court can provide a universal rule governing disqualifications in all 50 states.
Anderson, moreover, is hardly the only case that concerns Trump’s attempt to overthrow an election. The Supreme Court has already agreed to hear an appeal, brought by one of the individuals who invaded the Capitol on January 6, which claims that one of the federal laws Trump is accused of violating must be read very narrowly. It’s also likely to agree to Special Counsel Jack Smith’s request to quickly dispose of Trump’s argument that he is immune from prosecution for his attempt to steal the 2020 election.
There is a good chance, in other words, that the Supreme Court will provide significantly more guidance on what role the courts should play in handling an insurrectionist president, and soon. Until then, big questions, like whether Trump is disqualified from being president again, remain unresolved.