Trump gets good news … Colorado judges toss him off ballot
In a four-to-three decision, the Colorado Supreme Court voted to kick Trump off the presidential ballot in that state. Their ruling applies to both the primary election and the general election. The Court based its decision on the Fourteenth Amendment, which states that anyone who commits insurrection against the government is no longer eligible to be elected to public office.
This is the first case resulting in a decision to disallow Trump access to the ballot. In cases in other states, it was decided that the requirements of the Fourteenth Amendment were not met. In the initial Colorado case, the judge expressed an opinion that Trump was guilty of insurrection, but that the Fourteenth Amendment does not apply to a president.
The pertinent part of the rather long Fourteenth Amendment is Section 3, 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, 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 legal issues
The meaning of this Section is open to debate but has never been tested in the Supreme Court. Since the President is not specifically mentioned, there is an argument that it does not apply. If it mentions senators, representatives, and electors, why does it not specifically include the most important office? Some argue that a president would be included as “an officer of the United States.” That is debatable. The first judge in the Colorado case decided it did not apply to a president.
That is not sufficiently clear and will have to be eventually addressed by the United States Supreme Court – which will likely happen as a result of the Colorado decision.
One of the major problems with the Colorado decision is that President Trump has never been convicted or even indicted for insurrection. In fact, the case that addresses Trump in terms of the events on Capitol Hill on January 6, 2021, being handled by Special Counsel Jack Smith does not charge him with insurrection.
It seems logical that before the Fourteenth Amendment can be applied the President should have been convicted of insurrection in a federal court. Unfortunately, law and logic are not always connected. It is reasonably argued that the action of the Colorado Court denies Trump his “due process” constitutional right.
A second problem with the decision is whether a state court has the jurisdiction to make a final judgement on a constitutional amendment that impacts on the entire nation. While states are constitutionally empowered to manage elections, the Constitution and Congress set the rules for federal election eligibility – such as age of candidates, native born citizenship for presidents, the date of federal elections, etc. States can enforce the Constitution, but they cannot interpret it – and that is what the Colorado Supreme Court did. Section 3 of the Fourteenth Amendment is unsettled law.
The role of the federal government is specifically noted in Section 5 of the Fourteenth Amendment, which states that:
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Congress has never passed a law relative to this issue. The U.S. Supreme Court will also have to deal with that issue.
Another unresolved issue is whether Trump can run a write-in campaign. While the language of the Fourteenth Amendment says that no person “shall be” a senator, representative or elector, it does not name the President – and again “officer” is vague.
The political issues
The political fallout from this decision is likely to have a greater impact on the upcoming presidential election than the legal decision.
Surprisingly, even those on the left, who are among the never-Trump crowd, share one opinion of Trump and his supporters. This decision will be a boom to his campaign. Most predict that Trump’s donations and polling numbers will shoot up. That is the opinion expressed by several of the regulars on CNN and MSNBC. It is the opinion of pollster Frank Luntz. He said the decision “supercharges the vote for Trump.”
Several of the left-leaning “contributors” and “analysts” rue the decision. They believe that it gives credence to Trump’s claims that he is the victim of an untoward effort to block his effort to win a second term. It is one thing to argue why people should not vote for Trump, but quite another to use unprecedented and untested technical means to thwart his campaign.
Some leftwing legal types, such as Judges Michael Luttig and Lawrence Tribe, say the decision of the Colorado Court is “unassailable” – cannot be refuted. However, five other state courts came to a different conclusion and refused to take Trump off the ballot in their states. The judge in the initial Colorado case ruled that the Fourteenth Amendment does not apply to presidents. And almost half the Colorado Supreme Court dissented. That makes the Colorado decision highly controversial. Far from unassailable.
It is noteworthy that all seven of the judges on the Colorado Court are Democrats appointed by Democrat governors. And even then, it was a split decision. The fact that the vote on the Colorado Supreme Court was four-to-three is an important issue. If the issues were clear, one would expect a unanimous decision in such a major case. But three judges disagreed. Essentially, the case pivoted on the decision of one judge in Colorado.
This issue does not only impact on the voters of Colorado but has the potential of impacting on the entire national election. That is just too much authority and power for essentially one judge in Colorado.
While claiming to be upholding the Constitution, the Colorado Court is operating as an authoritarian institution. Four politically partisan judges – with a one vote margin — are attempting to override the right of the people to pick and elect their choice for President of the United States.
Personally, I am betting that the Colorado decision will not survive as the issues work their way through the federal judiciary. I would not be surprised if the United States Supreme Court strikes down the Colorado decision by a super majority – maybe even unanimously. Since the deadline for printing Colorado ballots is January 5, we can expect a Supreme Court decision very soon.
In the meantime, the anti-Trumpers may have won a temporary victory in court. But they have added a touch of credibility to Trump’s claims of a rigged system – and they just might have handed Trump the presidency for a second term. And that opinion is coming from a lot of leftwing folks in the news media.
So, there ‘tis.