Beneath the Surface

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This week the Colorado Supreme Court disqualified Donald Trump from running in the state’s presidential primary. It based its decision on Section Three of the Fourteenth Amendment, which states:

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…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.

The Fourteenth Amendment, which was ratified in 1868, included this provision in order to prevent Confederate leaders from returning to office after the Civil War. No state has ever used it to disqualify a presidential candidate, but then, no candidate has ever run for president while fending off charges that he tried to obstruct the certification of the previous election.

Having read the opinions of the four-justice majority and the three dissenters, I see the decision as legally strong but politically troubling. Legally strong because it is very thorough and carefully reasoned; politically troubling because it gives Donald Trump another reason to claim that courts are meddling in the 2024 election and potentially thwarting the will of the voters.

The case creates quite a dilemma for the U.S. Supreme Court, assuming it considers Trump’s appeal. If the justices let the Colorado decision stand and other states follow Colorado’s lead, the disqualifications could indeed determine the outcome of the election and outrage Trump supporters. Maybe they will even try another insurrection. But if the justices overrule Colorado, they better come up with an argument as well reasoned as the original decision. A weak argument that only the Republican appointees to the Court find persuasive would be another embarrassment the Court does not need right now. (It won’t help if three of the justices voting to overrule were appointed by the candidate appealing the decision.) More importantly, if the justices are so eager to keep Trump on the ballot that they eviscerate this section of the Fourteenth Amendment, they may weaken the country’s defenses against would-be dictators, now or in the future. This is a high-stakes case that requires all the wisdom the Court can muster.

Here is a closer look at the issues.

The Colorado case

Six Republican and independent voters sued the Colorado Secretary of State to keep Donald Trump off the ballot, with the assistance of Citizens for Responsibility and Ethics. A civil proceeding to adjudicate the issue began on October 30 and included five days of testimony.

In November, Denver District Judge Sarah B. Wallace ruled that Trump had, in the words of the Fourteenth Amendment, “engaged in insurrection.” Nevertheless, she allowed him to remain on the ballot on the grounds that the presidency is not an “office” for purposes of Section Three. That raised a lot of eyebrows among constitutional lawyers.

The majority decision

In a four-to-three decision, the Colorado Supreme Court ruled that the finding of insurrection should stand, but that the exclusion of the presidency from the concept of “office” was a reversible error. The majority pointed out that the Constitution itself refers to the presidency as an “Office” twenty-five times. They also argued that the exclusion leads to an absurd conclusion:

President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land.

Even the three dissenters agreed with that part of the decision.

The majority also argued that under our Constitution, the state’s authority to conduct presidential elections must include the authority to enforce the constitutional qualifications for office. Here they cite an opinion written by Neil Gorsuch when he was an appellate judge.

As then-Judge Gorsuch recognized in Hassan, it is “a state’s legitimate interest in protecting the integrity and practical function of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

The justices analyzed Colorado’s Election Code and concluded that “the General Assembly has given Colorado courts the authority to assess presidential qualifications….”

The majority acknowledged that Congress has never enacted legislation to enforce Section Three. But they took the same position regarding this section that the courts have taken with other sections of the Fourteenth Amendment; namely, that Congressional action is permitted by the Constitution but “not required to give effect to the constitutional provision.” (In technical legal language, they regarded the section as “self-executing.”) The lack of specific enforcement procedures mandated by Congress leaves states with the responsibility to enforce the insurrection disqualification as best they can.

Colorado has an expedited procedure for litigating election disputes that has been used many times. The majority justified using this expedited procedure for the insurrection issue as well, given the need to resolve disputes in a timely manner. “Looming elections trigger a cascade of deadlines under both state and federal law that cannot accommodate protracted litigation schedules, particularly when the dispute concerns a candidate’s access to the ballot.”

Although five days of testimony is a short time, especially when compared to a complex criminal case, the district court benefitted from one of the most painstaking investigations ever conducted by Congress, carried out by the House of Representatives’ Select Committee to Investigate the January 6^th Attack on the U.S. Capitol. The court’s majority made a case for the admissibility of the committee’s report in a procedure of this kind.

The decision carefully examined the terms “insurrection” and “engaged in,” concurring with the district court’s conclusion that Donald Trump’s behavior fit reasonable definitions of those terms. The justices considered the criteria by which a high court can overrule a lower court’s finding of fact. They saw neither any clear error nor abuse of discretion in the lower court’s judgment.

The dissents

Justice Berkenkotter did not agree that the Colorado Election Code authorizes the court to disqualify a candidate on the grounds of insurrection. Berkenkotter acknowledged that state legislatures can grant that authority, but denied that the Colorado General Assembly had actually done so. Justice Boatright said that the expedited procedures set up to handle other election cases are not good enough for insurrection cases. Section Three “presents uniquely complex questions that exceed the adjudicative competence of…expedited procedures.” Since these disagreements concern the majority’s interpretation of state law rather than constitutional law, they are unlikely to be a sufficient basis for a reversal by the Supreme Court.

Justice Samour’s dissent raised a constitutional issue that may provide more fertile ground for reversal. Samour did not agree that Section Three of the Fourteenth Amendment is self-executing, but that it requires enabling legislation by Congress to specify the procedures by which a candidate may be disqualified for engaging in an insurrection. In the absence of Congressional guidance, Trump should be charged under the federal insurrection statute if he is to be disqualified. Otherwise, he may be denied his Fourteenth-Amendment right to due process.

I have heard some constitutional scholars, such as Laurence Tribe, disagree with that reasoning. A disqualification is not the same thing as a criminal conviction, since it does not deprive a person of life, liberty or property. This decision does not require proof beyond a reasonable doubt, but only clear and convincing evidence. If the states are to enforce the insurrection standard at all in the short time before a ballot is printed, they must be allowed some discretion.

Who’s for democracy?

The typical Republican response to the Colorado decision, voiced not only by Trump supporters but by other Republican candidates for president, is that the courts should take a hike and leave election decisions to the voters. That view of unencumbered democracy may be very appealing, but it is too simple. (It is also rather hypocritical coming from a candidate who rejected the verdict of the voters in the last election.)

Of course, we want the voters to decide elections, but they must do so within the law. When disputes arise about what is legal, it falls to courts to sort it out. Many voters might prefer Barack Obama to either Biden or Trump next year, but federal law disqualifies him from serving another term. And, like it or not, the Constitution disqualifies insurrectionists from holding public office. It’s the law of the land, which the voters and the courts ignore at their peril. Without the rule of law, we cannot have democracy, just chaos or tyranny. The level of hostility toward judges being expressed by Trump and his followers is alarming, and is another reason to question Trump’s fitness to lead a democratic society.

I fully expect the Supreme Court to overturn the Colorado decision, but I hope the justices in the majority avoid doing too much damage to the Fourteenth Amendment or to states’ ability to enforce it. I imagine they will find fault with the decision on some procedural grounds. What they cannot do is hold their own trial and reach their own finding of fact. Nor can they declare Section Three unconstitutional, since it’s in the Constitution. What they may try to do is add some procedural rules and claim that they are somehow implied by the existing text or the historical context in which it was written.

What if the justices were to say that “having engaged in insurrection” really means “having been convicted of engaging in insurrection”? That would raise the bar for disqualification considerably, maybe forcing the states to leave dangerous candidates on the ballot while their lawyers use one delaying tactic after another to evade legal accountability. In other words, very much like the situation we were in before Colorado acted. If we make the insurrection clause too hard to apply, we may not have it when we really need it.