Yesterday, the Colorado Supreme Court rendered a surprising decision (even despite the court being entirely appointed by Democratic Governors) to remove Donald Trump from the primary ballot in next year’s primary election. The decision will be appealed, and almost certainly will be reversed by the United States Supreme Court, but the jubilation from many opposed to Donald Trump’s candidacy was palpable following the announcement.
I also don’t want to see Donald Trump ascend to the Presidency again, but I cannot muster the excitement many are feeling.
My argument was quite simple: He hasn’t been convicted of any insurrection-related crime. How can we allow state courts to subjectively determine whether Donald Trump has committed insurrection without an actual, fully-fledged hearing and jury trial?
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I think that Colorado’s Chief Justice, Brian Boatright, seemed to have the same train of thought in his dissent (emphasis mine, begins at page 135):
“Dismissal is particularly appropriate here because the Electors brought their challenge without a determination from a proceeding (e.g., a prosecution for an insurrection-related offense) with more rigorous procedures to ensure adequate due process.”
The 14th Amendment to the Constitution of the United States, Section 3:
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.
The most common line of defense for the Colorado Supreme Court’s decision is relatively simple: The 14th Amendment does not require conviction. A quick browse through the responses to my above X post will reveal dozens of folks making that same claim, sometimes followed by an urging for me to go read the 14th Amendment.
It is true that the 14th Amendment states that one must “engage in” insurrection, or provide aid or comfort to America’s enemies, not be convicted of a specific crime. It seems that, historically, that may be a legitimate argument. Citizens for Responsibility & Ethics in Washington (who brought the case against Trump in Colorado) has an entire page dedicated to previous 14th Amendment cases and the precedent to remove Trump from the ballot.
Most of the eight people disqualified under the 14th Amendment were not convicted of a crime, but most were also confederates, and some were kept from the ballot (or not seated) under strange circumstances.
Take for example A.F. Gregory, a local postmaster general who was removed from office by the U.S. Postmaster General in 1871. It simply states that it is “unclear” what exactly he did to warrant his removal. The same goes for J.D. Watkins, a district attorney, who was removed in 1869. He was found to have “engaged in the late rebellion,” but CREW couldn’t find any evidence for what exactly that meant.
Safe to say that the “precedent” that CREW was defending was a dubious one, at best. Perhaps it is best that the Supreme Court finally weigh in.
I’m not an attorney – nor am I a historian – but the idea that state supreme courts get to subjectively define what it means to “engage in” insurrection doesn’t sit well with me. I don’t want the Postmaster General deciding that either, for what its worth. While I have no issue with keeping the enemies of our nation off our ballots, I find it disturbing that we are inclined to use a Civil War-era constitutional amendment with a handful of cases from the 1870s to remove a candidate for the Presidency who is currently leading in the polls.
With that, I won’t bore you anymore. Plenty of smarter people will have in-depth legal and historical analysis of this decision. I’ll leave you with the conclusion of Chief Justice Boatright’s dissent (emphasis again mine):
“My opinion that this is an inadequate cause of action is dictated by the facts of this case, particularly the absence of a criminal conviction for an insurrection related offense.
The questions presented here simply reach a magnitude of complexity not contemplated by the Colorado General Assembly for its election code enforcement statute. The proceedings below ran counter to the letter and spirit of the statutory timeframe because the Electors’ claim overwhelmed the process. In the absence of an insurrection-related conviction, I would hold that a request to disqualify a candidate under Section Three of the Fourteenth Amendment is not a proper cause of action under Colorado’s election code. Therefore, I would dismiss the claim at issue here. Accordingly, I respectfully dissent.”
Also worth reading: Removing Trump From the Colorado Ballot Won't Make Things Better by Eric Boehm for Reason Magazine.
I was also quoted in Canada’s Globe and Mail regarding this story.