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The Colorado Supreme Court made big headlines this week by banning former President Donald Trump from the state’s ballot. The ruling, however, is unlikely to stand, many lawyers and constitutional experts have said.
In a 4-3 decision, the court declared on Dec. 19 that Trump “engaged in insurrection” by inciting a crowd to storm the U.S. Capitol on Jan. 6, 2021. Because under Colorado election law only qualified candidates can be placed on the ballot, it would be “wrongful” for the Secretary of State to let on the ballot a candidate disqualified under Section 3 of the 14th Amendment, which bars from office anybody who has previously taken an oath of office and later engaged in an insurrection.
Several constitutional experts told The Epoch Times the U.S. Supreme Court is likely to pick up the case and reverse the ruling.
The question remains, however, on what grounds the court will choose to do so. Some have argued that what Trump engaged in wasn’t an insurrection. Some have argued that he would first need to be convicted of the crime of insurrection to be disqualified. Some said the state court lacked jurisdiction to make the ruling. Some said the expedited civil process was insufficient to satisfy Trump’s due process rights. Some said the disqualification clause doesn’t apply to the president in the first place.
One expert predicted the Supreme Court is most likely to use the last argument because it would allow it to keep itself the most out of the political quagmire in particular and elections in general.
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“A more conservative court often tries to resolve a matter in the most straightforward way possible with the minimum need for a deep engagement on the part of the court. So I would say it is actually highly likely that they simply say, ‘As a matter of statutory construction, the office of Presidency was never contemplated for this,’” said Horace Cooper, a senior fellow with the National Center for Public Policy Research, who formerly taught constitutional law at George Mason University.
Alan Dershowitz, constitutional and criminal defense attorney who previously represented Trump, expects the Supreme Court to focus on Section 5 of the 14th Amendment, which says that “the Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
“It’s up to Congress to enforce it and they haven’t done it,” he recently told OAN.
The Colorado justices argued that the rest of the 14th Amendment is “self-executing,” meaning no Congressional action is necessary to implement it. But Dershowitz’s point steered more toward the question of what would be the proper venue for disqualifying a candidate.
“Think about it logically,” he said. “The writers of the 14th Amendment were radical Lincoln Republicans in favor of Reconstruction. Do you think they would turn the issue over to Alabama and Mississippi to decide who can run for President? That’s the last thing they would have done. They wanted a centralized power, obviously, in the Congress, not in a Confederate state.”
In Cooper’s view, however, this argument “doesn’t work.”
He pointed out that Section 1 of the 14th Amendment says that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
“Clearly the 14th amendment has requirements for state Courts,” he said.
“Section 5 empowers Congress to enact statutes such as the Civil Rights Act etc. to enforce the terms of the 14th Amendment. If the Supreme Court were to take Dershowitz’ advice they would create a great deal of confusion for state Courts that presently enforce these protections within their jurisdiction.”
In the final calculation, the Colorado ruling could be a boon for Trump. It’s likely to fire up his supporters who’d perceive it as unfair.
“The ruling by the Colorado Supreme Court will almost assuredly backfire on both Democrats and Republican rivals who have been hoping for these developments for months,” said Rich Baris, director of Big Data Poll.
“In our most recent poll, 40 percent of the president’s primary support told us they would write his name on the ballot if for any reason he was not the nominee—the highest percentage we’ve measured this cycle.”
The practical impact of the ruling would be limited even if it remains in force. A candidate doesn’t need to be on the ballot in all 50 states to win and Trump is unlikely to carry the deep-blue Colorado anyway.
On the other hand, the ruling reinvigorated efforts in other states to knock President Trump off the ballot, including in New York, California, Michigan, and Pennsylvania. A loss of ballot access in all these states would severely injure his chances, raising the stakes for the Supreme Court intervention.
