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Trump gets good news … Colorado judges toss him off ballot

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.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.

15 Comments

  1. Dan tyree

    It’s great. The idiots made Trump a victim. He hasn’t been charged with insurrection. And probably won’t be. And all the other stuff will fall apart

  2. Frank stetson

    Victory? Not likely although kicked off the national was a surprise; much reporting as to primary only.

    Good to have reason to test, wonder is SCOTUS will fast track given recent Smith denial.

    Key to aid clause versus insurrection clause and the “or” between them. And expecting insurrection conviction before is sort of an oxymoron. I mean would anyone ever pursue this after an insurrection conviction to stop him from running from jail?

    Can’t wait. Certainly an entertaining one.

    Fyi: CO scotus is two or three republicans, 3 or 4 indy’s, lean unknown. All picked by dem gov but reaffirmed by CO voters. Not sure the vote by party but split for sure.

    • Jim wampler

      Frank you know that you’re glad to have Trump removed from the ballot. Just because. No other reasons.

      • Frank stetson

        Jim, keep living the dream but it doesn’t prove anything imo except some of the benes Horist noted which don’t exactly thrill me, it won’t change the election, and it will probably be fast tracked and gutted by the SCOTUS thus ending Section 3 of the 14th.

        Nope. I’m just hoping to be glad that the 4 court cases and 91 charges can be adjudicated before the election so we can see the facts in court. Won’t happen but I can hope most do. GA already looks like early 2025.

        • Jimwampler

          So get ready to congratulate president trump. A you should seek a meeting with him to apologize for your stupidity and criticism

        • Jim wampler

          Frank you be ready to congratulate president Trump for his reelection victory. Make an appointment to go to Washington and visit him

    • Dan tyree

      Even republicans can be wrong. And they can be bribed and threatened. Our democracy is in danger right now thanks to the Democrats

  3. Tom

    I agree Larry. Your statement, “That is just too much authority and power for essentially one judge in Colorado.” is spot on. I do not think the US Constitution writers intended on one sovereign state being able to hold national elections hostage to the other states.

    As far as the wording, “No person shall be a Senator or Representative in Congress,…” I think it is perfectly worded. According to what I am reading in the Library of Congress, the fight to ratify the Constitution was bitter and occurred in 1787. But the elected representatives did not meet to form the new federal government until 1789. Thus the Constitution of the USA was written TWO YEARS BEFORE there was a Federal Government. Hence, there was an elected head, the President, (or other office applies) but he would have had to come from one of the original states – thus the wording is perfect. In my opinion, because Trump comes from one of the fifty states, the 14/3 applies. Here is what the Library of Congress says on the subject of when the Federal Government was formed: ” The new federal Congress that assembled in New York in the spring of 1789 and the newly inaugurated president, George Washington, faced enormous tasks. An entire government had to be created in the aftermath of a bitter national battle for ratification of the new federal Constitution. All administrative offices and the military forces had to be created and organized….” Read more at *https://www.loc.gov/exhibits/creating-the-united-states/forging-a-federal-government.html*.

    As I said yesterday, (by the way, thanks for expanding on some of the things I said yesterday) I have not read anywhere that Trump has been convicted of insurrection. It would seem to me that he would have to be charged and convicted first, then run for office, then be told he cannot because of his conviction for insurrection. This would keep popular tyrants from running for office.

    And again, much of the criticism centers on three hours where the capital was being assaulted and he “did nothing”. The question here becomes, “If a person does nothing, then how can that person be convicted of doing something?”

    In this matter I appear to be a Larry – Frank hybrid. (Imagine that!) Like you I do not think the CO Supreme Court decision will hold, no matter what the political make up or leanings of its members that you and Frank discuss. Like Frank, I believe the more important issues that might stop Trump (if such is legally possible) could be conviction on one of the 4 cases with 91 charges in total. This is much more important. In many states, such as FL, you lose your voting privileges if you are a convicted felon. I am wondering how if Trump is a convicted felon, how he can run for an office that he cannot even vote for. So I predict the drama will continue!

    MERRY CHRISTMAS EVERYBODY!!! THANKS FOR READING MY THOUGHTS!!!

    • Dan tyree

      Merry Christmas to all the posting people and staff. Stay sober and don’t get caught up in politics with relatives.

  4. Mike f

    I think the one thing that Larry (and other responders) have overlooked with the wording of this amendment, which was adopted following the civil war in 1868-the authors could not imagine a duly elected president of the US fomenting an insurrection. Trumps actions are truly unprecedented, and not being a lawyer I will not categorically state whether his actions-encouraging his supporters to riot at the Capitol and disrupt congress were an actual‘insurrection’-that is for others with more education in constitutional law to decide. However, it is unquestioned that he encouraged the riot to stop congressional activity to finalize joe Biden’s election-and for this action he should never hold elected office again

    • Wiley culp

      Biden wasn’t elected you idiot. The election was stolen.

      • Tom

        Go back under your rock where you belong. You know better.

    • tom

      I agree Mike f. I do not think they could imagine a POTUS inciting insurrection. The 14th was written primarily to keep the Confederate officers from participating in state and federal offices.

      • Jim lucas

        If the south had won we would have it made. As per Hank Williams Jr

        • Mike f

          Unless you happened to be black-you worthless POS…

  1. Frank I can’t understand what’s wrong with MAGA. You idiots on the left are satanic bastards out to destroy patriots.…

  2. Don’t tell me nout proof. I’m too Young to need proof. I don’t need no stinkin proof. We all know…