A seismic court ruling in Colorado just turned Trump’s campaign upside down. Here’s what comes next

(John Minchillo/Associated Press)

A seismic court ruling in Colorado just turned Trump’s campaign upside down. Here’s what comes next

Opinion piece, Elections 2024

Harry Litman

Dec. 19, 2023

Donald Trump has often taken the country into uncharted legal territory, but rarely as far as in Tuesday’s ruling by the Colorado Supreme Court. The decision leaves the fate of his presidential bid hinging on a constitutional amendment passed in the aftermath of the civil war.

In a stunning but not entirely unexpected 4-3 ruling, Colorado’s highest court ordered its top election official to remove Trump from the state’s ballots on the grounds that he is disqualified from the presidency by Section 3 of the 14th Amendment. Originally aimed at the leaders of the Confederacy, the provision disqualifies officials who engaged in an insurrection against the United States from holding federal office.

According to most readings, it is one of the few constitutional qualifications for the presidency, besides the requirements of the original document, in Article 2, that the president must be at least 35 years old and born in the United States. In that sense, the Colorado Supreme Court’s ruling is no more exotic than dozens of previous court rulings that a candidate does not meet constitutional qualifications such as age. And if we were to adopt the view of Trump’s lawyers, Colorado and other states would not be able to exclude candidates from the ballot even though they clearly do not meet age, residency, citizenship and other requirements.

However, the potential political impact of the ruling could not be more seismic. It could boost the 2024 elections by a

Deus ex Machina

solution to the problem of Trump’s attempt to return to the presidency, while two of them faced multiple criminal charges for attempting to overturn the results of the last election.

But the complications of the future case are many and extreme.

The first question is whether the U.S. Supreme Court will hear the case, which seems very likely. This is an unprecedented and hugely important issue of constitutional law that the next election will revolve around. So despite the justices’ already more than full plate, including an expedited review of Trump’s claim of immunity from prosecution on January 6, 2021, the court’s insurrection will be all but enforced.

Moreover, the judge will probably be forced to act urgently. The deadline to complete primary voting in Colorado is January 5. The state court stayed its ruling until the day before and, upon further appeal, also thereafter. Ultimately, however, Trump could be barred from voting in the state unless the U.S. Supreme Court overturns the holding in Colorado.

So what is the court’s conservative majority likely to do? It has several options if it wants to reverse the state decision.

The least likely option is to overturn the Colorado court’s factual findings. That’s why the lower court’s finding, after a weeklong trial, that Trump participated in an insurrection was such an important step toward Tuesday’s decision. Appellate courts are normally reluctant to overturn factual findings absent clear error.

That suggests the court will focus on legal issues. I see three possibilities.

The first is where the Colorado Supreme Court reversed the court and ruled that the president is an “officer” of the United States covered by Section 3, as most observers believe. Indeed, the court appears to have gone the other way, largely because it lost the nerve at the last minute to consequentially argue to the contrary. Stating that the 14th Amendment does not apply to the presidency would be about the narrowest possible basis for overturning the Colorado Supreme Court’s ruling.

Alternatively, the U.S. Supreme Court could use the statutory definition of “insurrection.” The court adopted a fairly broad definition of insurrection, which pleased the state’s highest court. The Colorado Supreme Court, in turn, noted that while it would be difficult to provide an all-encompassing definition, insurrection also includes “a concerted and public use of force or the threat of force by a group of people to destroy the United States government.” hinder or prevent the actions necessary to effect a peaceful transfer of power.” Finding an incorrect definition would be sufficient to reverse the Colorado decision.

Finally, the Supreme Court could rule that the Colorado


shouldn’t have asked this question in the first place. The rationale would be that Section 3 is qualitatively different from other constitutional qualifications and not amenable to judicial pronouncement.

Colorado Chief Justice Brian D. Boatright advanced this reasoning in his dissent, arguing that disqualification under the 14th Amendment must occur somewhere other than in a court of law. Unlike qualifiers like age and place of birth,” he wrote, “the application of Section Three requires courts to define complex terms, identify legislative intent more than 150 years ago, and make factual findings alien to our election law.

A version of this argument has prevailed in Minnesota and Michigan, where courts have rejected similar attempts to disqualify Trump. And it seems extremely likely that this US Supreme Court will rule along these lines. Consider, for example, the parallel but questionable conclusion that most gerrymandering is beyond his ability to judge.

But it would not be as simple as finding that the 14th Amendment issue cannot be similarly litigated under federal constitutional law. That would still leave room for Colorado’s highest court to rule that it has the power to review Trump’s qualifications based on the state’s constitution and laws.

The highest court in the land should find something in the language of Section 3 that precludes trial in a state court. For example, it might be true that the text, structure, and history of the section indicate that only Congress can exercise the essentially political judgment to implement the provision.

In short, we’re in for a wild and woolly constitutional ride over the next sixteen days and perhaps beyond, and it’s hard to know where and how it will end. The two most prominent proponents of the theory that Section 3 of the 14th Amendment is “self-executing,” Laurence Tribe and J. Michael Luttig, have been vindicated by the Colorado decision, but they have also said that once the case comes to trial, US Supreme Court, all bets are off.

Indeed they are, except for one. We can safely bet that the court’s opinion will be a landmark in constitutional law and for the future of the country.

Harry Litman is the host of the

Talking Feds Podcast




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