Ari Armstrong, Constitutional Law, Elections, Exclusives, Legal, Uncategorized

Armstong: The debate over Trump’s Colorado ballot access

Here’s what Section 3 of the Fourteenth Amendment says: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, 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.”

Here is my common-sense restatement: If any previous office holder in the U.S. “engaged in insurrection or rebellion” against the U.S. or gave “aid or comfort to the enemies” of the country, that person cannot be elected or appointed to government office.

Did Donald Trump engage in insurrection or rebellion, or give aid or comfort to those who did? He tried to overthrow the 2020 presidential election and retain power illegally. He riled up his followers to violently invade the U.S. Capitol on January 6, 2021, with the aim of interfering with the peaceable transfer of power. The answer clearly is yes. So, under a common-sense reading of the Fourteenth Amendment, he is not eligible to run for president or any other U.S. office.

But lawyers are the ones debating Trump’s eligibility in court, and many lawyers either lack common sense or else pretend to. And so various lawyers read the clear text of the Fourteenth Amendment and pretend that it means something other than what it obviously says, or pretend that Trump did something other than what he obviously did.

Calls for democracy

We’ll return to the text of the measure in a bit. First, though, let’s address the argument made by many of Trump’s supporters (and some of his opponents), that “we” should let Trump on the ballot so that “the people” can decide whether to elect him president democratically.

Others have noticed the strangeness of people who previously wanted to overthrow a presidential election now suddenly pretending to be very concerned about “democracy.” (Not all of Trump’s current supporters wanted to overthrow the election, but many did.)

Also strange is how many constitutional Republicans all of a sudden seem not to care much about what the Constitution says or about proper legal limits to majority will. The entire point of the Fourteenth Amendment is that the people who promoted and enacted it worried that, at some point, people might be stupid enough to vote in an insurrectionist. If we never thought that majority will could go awry, we wouldn’t need the Bill of Rights or any of the other constitutional protections against abuses by the majority.

You’ll notice that the people now crying for pure “democracy” were not overly concerned that Trump lost the popular vote both in 2020 and in 2016. It’s almost as though they want majority will only when it breaks in their favor.

The Colorado challenge

What’s behind the Colorado challenge to Trump’s ballot access?  Back in 2017, the legislature passed Senate Bill 305, cosponsored by conservative stalwarts Kevin Lundberg and Patrick Neville. Section 4(4) of that bill scratches out “secretary” and inserts “district court” in this line: “Any challenge to the listing of any candidate on the presidential primary election ballot must be made in writing and filed with the [district court].”

A challenge was so made. The legal case in question is called Anderson v. Griswold because the lead plaintiff is Norma Anderson, who served as a Republican legislator for nearly two decades. She left office in 2006, so newcomers to the state may not recognize her name, but to us old timers Anderson is among the best-known Colorado Republican politicians of all time.

On November 17, district court Judge Sarah Wallace ruled that, although Trump engaged in insurrection, he was not an “officer of the United States” under the Fourteenth Amendment. That theory is so ridiculous on its face—it holds that those who brought the Fourteenth Amendment thought it would be perfectly fine if a sitting president engaged in insurrection and then ran for president again—that, at the time, I speculated that Wallace, perhaps fearing violence by Trump’s supporters, kicked the can down the road to the state Supreme Court.

Of course I cannot read Wallace’s mind, but, if she did have such a fear, it obviously was warranted. CBS reports, “Law enforcement in Denver is investigating threats against justices of the Colorado Supreme Court in the wake of its landmark decision finding that former President Donald Trump is disqualified from holding the presidency due to his conduct surrounding the Jan. 6, 2021, attack on the U.S. Capitol.”

Wikipedia links to the decisions both of the district court decision and of the Colorado Supreme Court. For what it’s worth, I think that Ilya Somin offers the best legal analysis of the case. Of course, he agrees with me. You can find his work at The Volokh Conspiracy, where other lawyers argue the other side. For more skepticism, you can read Rob Natelson’s article at Complete Colorado or search for his work at the Epoch Times. Bluntly, those who defend Trump’s ballot access seem to me to be twisting the language of the Fourteenth Amendment into pretzels rather than just reading what it plainly says and applying it as written.

I would remind those in anguish about the possibility of Trump losing his ballot access that literally millions of other Republicans remain eligible to run for president, because they did not attempt to overturn a presidential election. Why you want to stick with a morally depraved habitual liar and insurrectionist is beyond me.

When she resigned her seat, Anderson told the Denver Post, paraphrasing former House Speaker Bev Bledsoe, “If you do what’s best for the state, it’s what’s best for the party.” In bringing her suit against Trump, Anderson has sought to do what is best for Republicans, whether they appreciate it or not, as well as for Coloradans and Americans. Her name will, as they say, go down on the right side of history.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.


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