Democrats, left-wing activists and journalists, and “never-Trumpers” have been celebrating since Dec. 19 when the all-Democrat Colorado Supreme Court issued its ruling in the case Anderson v. Griswold. For them, Christmas had come early – or so they thought. The ruling held, of course, that former President Donald J. Trump was ineligible to run for office because of his connection to the events of Jan. 6, 2021, in the nation’s capital. The court’s four-judge majority took its cue from Section 3 of the 14th Amendment and said “it would be a wrongful act under the Election Code for the Colorado Secretary of State to list [Trump] as a candidate on the presidential primary ballot.” There was one supremely important sentence in the 213-page opinion, however, that practically rendered the whole thing moot. The frenzy on both sides of the political divide has been, at least in part, an exercise in futility.
For Liberty Nation, Legal Affairs Editor Scott D. Cosenza originally reported on the Colorado Supreme Court decision. While an important detail was missing from most media write-ups – or at least glossed over as if inconsequential – Cosenza noted that the Colorado court “delayed implementing the decision until January,” explaining:
“The part of the order that suspends the judgment is set to expire on January 4. It says that if Trump appeals the issue to the US Supreme Court by that date, state ballots must include his name unless and until the highest court says otherwise.”
Colorado Supreme Court Defanged Its Own Ruling
The vital sentence in question is right there on the first page of the opinion: “The court stays its ruling until January 4, 2024, subject to any further appellate proceedings.” So while some Democrat politicians and progressive pundits lauded the ruling and claimed, bizarrely, that this was some kind of victory for democracy, Trump remains on the ballot in Colorado – at least for the time being. In reality, four justices in a state Trump would be unlikely to win in November 2024 if he becomes the Republican presidential nominee wrote an opinion that, while entirely anti-democratic by its very nature, means absolutely nothing if Trump appeals.
(Photo by RJ Sangosti/MediaNews Group/The Denver Post via Getty Images)
Three Colorado Supreme Court justices – again, all Democrats – dissented. It would be unfair to assume knowledge of their personal opinions. They may have liked the notion of banning Trump from the ballot and they may not have. Either way, they knew this wasn’t going to fly and perhaps didn’t want their names attached to the opinion.
On Jan. 5, Colorado will certify its primary ballots. If Trump has appealed by then, the Colorado ballot will remain as it is, with his name on it. The only way the 45th president is stricken from the ballot is if he doesn’t appeal by the Jan. 4 deadline. The US Supreme Court is not back in session until Jan. 8, 2024, so an appeal filed before the state of Colorado certifies its ballots would guarantee Trump’s inclusion in the state’s GOP primary, no matter what.
In the extremely unlikely event that the highest court in the land upholds the ruling of the Colorado Supreme Court, that state could prohibit Trump from appearing on the 2024 general election ballot – and almost certainly several other blue states would follow suit. Rather than preserving democracy, Democrats would have subverted it irreparably.
The Case Against Colorado
Why is the Supreme Court unlikely to back up the dangerous but mostly symbolic – one might suggest spiteful – ruling out of Colorado? There are two very good reasons and a third that, while not legally relevant, will surely weigh on the justices’ minds if, and when, they consider a Trump appeal.
Section 3 of the 14th Amendment bars those who “have engaged in insurrection or rebellion” from holding almost any elected or appointed office in the federal government. While the left-wing media and elected Democrats have continuously referred to the events of Jan. 6, 2021, as an “insurrection,” the label is inflammatory and entirely partisan. Without a doubt, there was an attempt, on that fateful day, to obstruct, disrupt, and/or postpone an official proceeding – the certifying by Congress of the 2020 Electoral College votes. This is in itself a federal offense. It’s hardly the same thing as attempting to overthrow the government, though. To describe Jan. 6 as an insurrection is a stretch, to say the least, and the Supreme Court is not likely to want to go down that road. Why did the left almost immediately use the word “insurrection”? Not because they truly believed it but because they had already made the connection to the 14th Amendment.
Then there’s the exact wording of that part of the Constitution used to justify the Colorado Supreme Court ruling. Back to Section 3 of the 14th Amendment. What offices does it prohibit insurrectionists from holding? “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.” As LN’s Cosenza and many other legal scholars have pointed out, the office of president is not explicitly mentioned. Though it says, “or hold any office,” neither the Founding Fathers nor the authors of this amendment, ratified in 1868, saw fit to list the office of president among those denied to insurrectionists. Any rational student of the Constitution – layman, lawyer, or academician – assumes that the position of president would most certainly have been listed if the intention was that it be covered by the 14th Amendment.
Section 3 says that none of the listed offices can be held by a person who has “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.” Once again, “president of the United States” is not mentioned. Many constitutional scholars agree that “officer of the United States” does not cover the office of president. Thus, on two counts, Trump fails to meet the criteria for disqualification under the 14th Amendment, even if one counts Jan. 6 as a real insurrection.
The final reason the Colorado Supreme Court is unlikely to find majority support among the nation’s nine most senior jurists is the terrifying precedents it could set. Any members of Congress or state governors who at some point address or even express support for protesters objecting to an action by the federal government could be labeled insurrectionist and be permanently banned from running not only for the president but even for re-election to whatever office they hold at the time. Utter chaos would ensue, and judges, more often than voters, would determine the outcomes of more elections. How long could the nation hold together in such an environment?
For probably all these reasons, the Colorado Supreme Court was split on the Trump decision and, even though it still ruled against him, punted to the US Supreme Court. Those Colorado justices didn’t kick Trump off the ballot, they just made a statement that they would like to if they thought they could get away with it.