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 the lower court found decisive. The second was that the proceeding, like some others against the former President, did not 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.
Colorado law empowers the secretary of state, as chief elections officer, to decide who has qualified for the ballot. After the secretary of state placed President Trump on the ballot, a group of anti-Trump Republicans and Independents petitioned to have him removed. State law provides an expedited (very fast) procedure for election challenges. This procedure enabled the petitioners to bypass the “standing to sue” problems that have thwarted similar lawsuits in other states, and which I discussed in an earlier column.
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 like “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):
“No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office . . . under the United States, or under any State, who, having previously taken an oath, 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, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
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 was not covered by Section 3 of the 14th amendment. The judge noted that Section 3 mentions members of Congress and presidential electors but does not mention the President. So the presidency is covered only if it is 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 is not an “officer under the United States” as the Constitution uses that phrase.
Thus, the judge denied the petition to strike President Trump from the Colorado ballot. The petitioners thereupon appealed to the state supreme court.
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.
First, the court pointed out that under the U.S. Constitution, presidential elections are subject to state, not federal, control. Although the Constitution gives Congress power to override state congressional election laws, the Constitution does not give Congress similar power to override state presidential election laws. (The principal exception is that Congress may fix the time for choosing the Electoral College and the day on which the Electoral College votes.)
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 was not “self-executing.” In other words, they argued that it is a dead letter unless Congress defines and enforces it, which Congress has not done. They point to Section 5 of the 14th amendment, which gives Congress power to enforce the amendment by “appropriate legislation.”
There are several problems with that argument. First, the fact that Congress has power to adopt laws enforcing the amendment does not mean it must do so before the amendment is effective. Second, although the amendment granted Congress power to remove a disability, it pointedly did not grant power to create a disability. Third, Section 5 is what is called an “incidental powers” clause. This means its scope is quite limited.
Congress has passed a law making insurrection a crime (18 U.S.C., Section 2383). Violation of that law leads to disqualification. It is unclear what portion of the Constitution gives Congress authority to pass such a law, but it probably is not the 14th amendment.
What the Court probably did wrong
Several scholars have concluded that Section 3 of the 14th amendment does not apply to the President because (they say) the presidency is not, in the Constitution’s phrase, an “office under the United States.”
They present an impressive amount of evidence suggesting that when the Constitution was ratified, people thought of the President as an officer, but not as an “officer under the United States.” That phrase referred only to an appointed officer, such as the Secretary of the Treasury or the Secretary of the Senate.
The trial judge found the evidence from the ratification era persuasive, but the Colorado Supreme Court largely ignored it. Instead, the majority contended that excluding the President didn’t make sense, because then he would not be covered by the Constitution’s Foreign Emoluments Clause (Article I, Section 9, Clause 8), which prevents officers under the United States from accepting gifts from foreign powers. However, important evidence shows that the people who ratified the Constitution did not, in fact, consider the President to be covered by the Foreign Emoluments Clause. The justices ignored that point, too.
What the Court definitely did wrong
President Trump repeatedly has 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.
President Trump has never been convicted—or even charged—with insurrection. President Biden’s Justice Department, which has not been reluctant to prosecute political opponents (including President Trump), has never proceeded against him under the federal insurrection statute. The likely reason for this is that the prosecutors know there is not sufficient evidence to obtain a conviction. As I have stated in a previous column, I think there should be a conviction for criminal insurrection before a person is disqualified.
The Colorado trial judge nevertheless allowed the suit to proceed. As a result, she had to determine whether the Jan. 6 riot really was an insurrection—and, if it was, whether 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 are 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.
Material from the Jan. 6 committee is hearsay, which means it cannot be cross-examined. True, the Supreme Court pointed out that an exception to the hearsay rule exists for “factual findings resulting from an investigation made pursuant to authority granted by law.” But the Jan. 6 committee’s spectacle was not an “investigation” as that term usually is understood. It was a show trial: All the members of the committee had voted to impeach Trump on the same charges. All Trump supporters were kept off the committee. The Trump team was not permitted to introduce evidence, challenge evidence, or cross-examine witnesses. Evidence was admitted, highlighted, suppressed, or manipulated to achieve pre-determined results.
The committee hearings were staged events designed to destroy a political opponent. Joe Stalin couldn’t have done it better.
In sum, material from the Jan. 6 committee has no place in a courtroom.
If the Colorado Supreme Court decision survives review by the U.S. Supreme Court—and I suspect it will not—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.
Is that the future we want?
Robert G. Natelson, a former law professor, taught Constitutional Law and First Amendment. He is the senior fellow in constitutional jurisprudence at the Independence Institute, a free market think tank in Denver, and author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). A version of this essay originally appeared in the Epoch Times.
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