No, not a Tom Hanks sequel
The Colorado Supreme Court on Tuesday ruled 4-3 that Section 3 of the Fourteenth Amendment is not a dead letter. The court found Donald J. Trump ineligible to appear on the 2024 Colorado primary ballot. The Jan. 6 violence was consciously encouraged by Trump, that the violence constituted an insurrection, that his actions are disqualifying, and that no legislative action is required to make it so. The provision is self-executing.
The case brought by several Republicans and one independent voter charged that it would violate state election law if Secretary of State Jena Griswold placed an ineligible candidate on the Colorado primary ballot. Specifically, that Trump is ineligible (Washington Post):
“A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution,” the decision reads. “Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”
[…]
“We do not reach these conclusions lightly,” the majority wrote. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
Don’t be absurd
The Colorado court’s decision (between the lines) includes numerous FUs to the former president and his hapless attorneys.
The amendment’s other sections require no enabling legislation, the court found. Section 3 adds a disqualification to the constitution’s existing qualification for the presidency, no different from the age and citizenship requirements. The court cites multiple cases where states held those provisions to be self-executing (pg. 31). California refused to place a twenty-seven-year-old on the presidential ballot; Colorado (in the Hassan case involving then-Judge Neil Gorsuch) excluded a naturalized citizen from the presidential ballot; Illinois found a thirty-one-year-old candidate disqualified from its presidential ballot.
Now-Justice Gorsuch wrote in the Hassan decision he surely must remember:
… it is “a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”
The court brushed aside Trump’s arguments that in exercising its right to free association a political party has the right to nominate whomever it chooses. Could it then nominate that twenty-seven-year-old or someone not a natural-born citizen? No. Don’t be absurd, the court did not add.
The argument that Section 3 does not apply to the presidency the court also found absurd (CNN):
Section 3 of the 14th Amendment says oath-breaking insurrectionists can’t serve as senators, representatives, presidential electors, “or hold any office, civil or military, under the United States, or under any State.” But it doesn’t mention the presidency.
This textual vagueness is why the trial judge kept Trump on the 2024 ballot. But the high court disagreed. And this was the linchpin of their decision to disqualify Trump.
Trump argued that as mentioned in Section 3 the presidency is not an “office” under the Constitution. But the court finds 25 times elsewhere in the Constitution where the presidency is referred to as an “Office” (i.e., you’re wasting our time).
The court concludes (pg. 127):
Our independent review of the record in this case brings us to the same conclusion: President Trump incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power. The tenor of President Trump’s messages to his supporters in exhorting them to travel to Washington, D.C. on January 6 was obvious and unmistakable: the allegedly rigged election was an act of war and those victimized by it had an obligation to fight back and to fight aggressively. And President Trump’s supporters did not miss or misunderstand the message: the cavalry was coming to fight.
The decision itself is “unassailable” in the opinion of retired conservative appellate judge J. Michael Luttig (CNN):
“The individual justices of the Colorado Supreme Court brought honor to their court as well to the state and federal judiciaries with their opinion tonight in this historic case,” Luttig told CNN’s Pamela Brown on “AC360” Tuesday, describing their “meticulous” efforts to address all the issues involved in the case.
“Their opinion is unassailable under the objective law of the federal constitution and section 3 of the 14th Amendment. The Supreme Court of the United States ought to affirm this decision today,” he added.
The unprecedented decision opens a can of worms and raises too many questions to answer this morning.
What will SCOTUS decide? Will John Roberts find a way to “not mix in” and/or let the Colorado decision stand? Will other states follow if that happens or if the Supremes uphold Colorado? Will Republicans nominate someone else if they do? (Can RNC members afford the private security?) Will Justice Clarence Thomas, wife of Ginny of Insurrection, recuse? Will the outcome help Joe Biden or hurt him?
Amanda Marcotte worries what happens if Trump gets stripped off several state ballots (Salon):
All of those never-Trumpers we thought were our buddies will abandon the #Resistance so fast it will make Democratic heads spin. And the MAGA types could be so angry about losing Dear Leader they will rush the polls to vote as hard against Biden as possible.
David Frum admits his predictions about the case were wrong and believes it more likely Trump will not be the GOP nominee. SCOTUS now has an opportunity to save itself and the republic on which Clarence Thomas‘ paycheck stands (The Atlantic):
The U.S. Supreme Court now has the opportunity to offer Republicans an exit from their Trump predicament, in time to let some non-insurrectionist candidate win the Republican nomination and contest the presidency.
The Colorado court has invited the U.S. political system away from authoritarian disaster back to normal politics—back to a race where the Biden-Harris ticket faces more or less normal opponents, rather than an ex-president who openly yearns to be a dictator.
Naturally, MAGA Republicans are not amused (CNN):
Republican National Committee Chairwoman Ronna McDaniel attacked the Colorado Supreme Court’s decision to remove former President Donald Trump from the state’s 2024 ballot
She called it “election interference” in a post to X, and said the RNC’s legal team “looks forward to helping fight for a victory.”
House Speaker Mike Johnson said the ruling was “nothing but a thinly veiled partisan attack.” He said voters should be able to decide the nominee.
“Regardless of political affiliation, every citizen registered to vote should not be denied the right to support our former president and the individual who is the leader in every poll of the Republican primary,” Johnson said.
The decision is on hold until January 4, one day before Griswold is required to set the March 5 primary ballot candidate list in stone. This will allow the U.S. Supreme Court time to decide whether it will review the case. Which it almost certainly will. Trump will insist.
Happy Hollandaise to all y’all!