The Colorado Supreme Court's Silly Decision

Recently, the Colorado Supreme Court, in a 4-3 decision, held that former President Donald Trump was not eligible to remain on the ballot for Colorado’s upcoming primary.[1] While this article will not dissect every aspect of the Court’s decision, it will focus on the principal grounds for the decision, its effect on democratic choice and, its impact on the judiciary’s institutional legitimacy.

The Colorado Supreme Court based its decision on three findings.

First, the Court held that, under Section Three of the Fourteenth Amendment to the United States Constitution, Trump was an “officer of the United States.”[2] A reasonable argument can be made, however, that Trump is not an “officer of the United States” because the Fourteenth Amendment, while mentioning “Senator” and “Representative,” never mentions “President,” and the text lists federal officials in descending order from “Senator” to “Representative” to civil or military office holder. Additionally, an earlier draft of Section Three included the word “President,” but it was deleted and not included in the final version. Furthermore, the historical record suggests that Section Three applies to appointed, not elected, positions.[3] At the very least, one can argue that Section Three is ambiguous concerning whether the president is included in that section.[4] The point is not to say that the Colorado Supreme Court’s decision holding that Trump is an “officer of the United States” is meritless. It is to say, however, that the text is susceptible to alternative interpretations. In such a situation, the Court should reach an outcome that furthers, not hinders, democratic participation, and that enhances, rather than reduces, democratic choice. The four justices in the majority, all appointed by Democratic governors, chose the opposite path.

Second, the Court held that former President Trump “engaged in” an insurrection. Surely, the events on January 6, 2020, were disgraceful and a sad moment in our country’s history. Thousands of citizens stormed the Capitol Building, destroyed property, threatened lawmakers, and caused harm that resulted in five deaths.[5] As despicable as this conduct was, however, a reasonable argument can be made that Trump neither incited this violence nor engaged in an insurrection. To begin with, in Trump’s January 6 speech, he told protesters to march to the Capitol “peacefully and patriotically.”[6] This language alone makes it difficult to assert, under Brandenburg v. Ohio, that Trump incited imminent and unlawful violence.[7] Additionally, what precisely did Trump do that constitutes “engaging in” an insurrection? Yes, Trump encouraged his supporters to “fight like hell,” but he also told his supporters to march “peacefully and patriotically" and he did ultimately call for the protestors to “go home.”[8] Thus, a credible argument can be made that Trump never “engaged in” an insurrection. Additionally, Congress has already codified insurrection in 18 U.S.C. 2383, which requires a criminal conviction before one can be deemed an insurrectionist. Trump has never been charged with, much less convicted of, insurrection, and on February 13, 2021, the Senate acquitted Trump of this charge.[9] If Trump had been charged, he would have, at the very least, been afforded the due process protections that were so conspicuously absent in the lower court in Colorado. Given the above facts, particularly the dearth of fair procedures in the lower court (e.g., no discovery, inability to subpoena documents, and no opportunity for a fair trial), how could the Colorado Supreme Court possibly hold that Trump “engaged in” an insurrection, the result of which was to eliminate the leading Republican presidential candidate from the Colorado primary and thus undermine democratic choice? The answer should seem obvious – and that answer has nothing to do with the law or the Constitution.

Third, the Colorado Supreme Court held that Section Five of the Fourteenth Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” was self-executing and thus enabled the Court to adjudicate whether Trump engaged in an insurrection and could be disqualified from the ballot.[10] Certainly, one could argue that, in mentioning Congress in Section Five, the drafters did not mean to give Congress exclusive authority to enforce Section Three. But one could also argue that the text could not be clearer: only Congress has the power to enforce Section Three, which it did when enacting 18 U.S.C. 2383 and which, as stated above, requires a criminal conviction for insurrection – a crime for which Trump was never charged. Yet again, the Colorado Supreme Court ignored these facts and, unlike every state court that previously considered this issue, made the unprecedented and decidedly undemocratic choice to hold that Trump was disqualified from the ballot.[11]

Does it seem correct that the Constitution’s drafters believed that a state court could adjudicate a matter where the liberty interest at stake was so substantial yet the procedures for determining whether to deprive a citizen of that interest were so truncated? Of course not. This is particularly true considering that the district court's decision that Trump had engaged in an insurrection was based largely on the findings of the January 6 Committee, which selectively called witnesses, admitted hearsay evidence, and otherwise observed none of the procedural safeguards that a trial requires. Yet, at every turn, whether it was deciding if Trump was an “officer of the United States” or had “engaged in” an insurrection, or whether Congress had the exclusive authority to enforce Section Three, the Colorado Supreme Court ruled against Trump. In so doing, the Colorado Supreme Court made originalism its best friend even though its justices are anything but originalist. Convenience obviously trumped conviction.

As stated above, this is not to say that a particular interpretation of Sections Three and Five is superior to another. It is to say that when reasonably alternative interpretations of a constitutional text or statute are possible, courts should reach outcomes that promote democratic choice and participation.[12] Viewed in this light, the Colorado Supreme Court’s interpretation of the Fourteenth Amendment and resulting decision was entirely unreasonable. The courts in Michigan, Minnesota, Oregon, Nevada, and Rhode Island, which dismissed lawsuits that could have resulted in Trump’s disqualification from their respective ballots, got it right.[13] 

The Colorado Supreme Court could not have honestly believed that its decision preserved democratic choice or protected democracy. Furthermore, like any rational person, the Colorado Supreme Court – whose justices were all appointed by Democratic governors – must have known that its decision would be controversial, invite chaos and uncertainty into the electoral process, engender charges of partisanship and election interference, foment division, further erode public trust in the judiciary and rule of law, and fuel the belief that it was motivated by the desire to prevent Trump from regaining the presidency. After all, if this case involved Hillary Clinton, Barack Obama, or Joe Biden, does anyone believe that the Colorado Supreme Court would have reached the same result? If you believe that the answer is yes, you probably also believe that Letitia James and Fani Willis (whose days prosecuting Trump may soon be numbered), acted impartially and with reverence for the law when they sought indictments against Trump based on tenuous legal theories, and in jurisdictions that are so overwhelmingly liberal that a fair trial is a fantasy.  Additionally, the Colorado Supreme Court surely must have known that the United States Supreme Court would almost certainly overturn its decision, particularly on due process grounds.

Given these facts, and given that the provisions upon which the Colorado Supreme Court’s decision was based were subject to alternative and equally reasonable interpretations, how could the four democratically appointed justices have thought this decision was a good idea? How could they believe that, in an era where some believe that democracy is “at risk” and “on the ballot,” this decision would not engender claims that it was an anti-democratic and politically motivated attempt to eliminate Trump from the presidential race? The truth is that the majority engaged in politics, not law, and was motivated by emotion, not reason. They were striving to find any path, however implausible, to reach an outcome that was pre-determined and fundamentally dishonest.

Not surprisingly, the usual suspects, including some law professors (the vast majority of whom are overwhelmingly liberal) and mainstream legal commentators, such as former Trump apologist George Conway, who believes Trump should spend the rest of his life in prison, have come out of the woodwork to support the Colorado Supreme Court.[14] Whether through law review articles, poorly written amicus briefs, or media interviews, these “experts” often use fancy words and legalese to create the veneer of objectivity and the pretense of neutrality when their motivations are anything but neutral or objective. And like the Colorado Supreme Court, these “experts,” who consistently criticize originalism in favor of “living constitutionalism,” have suddenly adopted originalism to support their arguments, even though they have spent much of their careers criticizing originalism – and Justice Antonin Scalia – as “racist,” “oppressive,” and a threat to those who value victimhood. Ultimately, one should be wary of individuals whose arguments so conveniently coincide with their personal beliefs.

Make no mistake: a political agenda that is rooted in a dysfunctional hatred of Trump and a disregard for the very democracy they claim to want to preserve and protect motivates these “experts.” As stated above, if this case involved Hillary Clinton, Barack Obama, or Joe Biden, does anyone really think that Harvard Law Professor Laurence Tribe or any of the law professors who submitted amicus briefs in support of the Colorado Supreme Court's decision would take the same position? Of course not. And for those liberal scholars who chastise Trump for claiming that the 2020 presidential election was “stolen,” recall how vehemently some of these scholars questioned the result in Florida after the 2000 presidential election, and how they trashed the Supreme Court when the majority did not rule in favor of Al Gore. Likewise, remember when Stacey Abrams said after her loss in 2019, “[d]espite the final tally and the inauguration … I do have one very affirmative statement to make. We won.”[15] Also, one cannot forget Hillary Clinton repeatedly claiming that Trump was an illegitimate president.[16] These comments sound eerily like Donald Trump, don’t they? 

It should come as no surprise that the public has lost faith in the judiciary and our academic institutions. Sadly, the Colorado Supreme Court’s decision is only the tip of the troubling iceberg. In Dobbs v. Jackson Women’s Health, the U.S. Supreme Court decided to overturn a nearly half-century precedent – Roe v. Wade – because the political affiliations of the justices had changed, with Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg and Justice Brett Kavanaugh replacing Justice Anthony Kennedy.[17] And in Students v. Fair Admissions v. Harvard, the Court, once again armed with two new Republican-appointed justices, suddenly discovered that affirmative action programs were unconstitutional.[18]  In both cases, the justices were neatly and predictably split along ideological lines. In other words, the Constitution’s meaning is contingent upon the party affiliations of the justices.

The health of this country and its institutions is deteriorating. Citizens used to revere our public institutions, including state and federal courts, particularly the Supreme Court, admire professors for teaching and mentoring young people, and look to the media to report accurately and objectively on public events. People used to believe that intelligence trumped ideology, and that integrity trumped indoctrination. That is no longer the case. Donald Trump has exposed what lies behind the curtain of the institutions and academies that we once considered hallowed ground: dishonesty, ideological uniformity, hypocrisy, and intolerance. If you doubt this, walk into some law schools, and ask to meet with a conservative professor. You might get arrested, charged with a microaggression, and ordered to undergo “anti-bias” training (which studies have shown does not work). Try to give a presentation about originalism at a law school and you might get shouted down by a mob of entitled, hyper-sensitive, and narcissistic students whose intelligence is eclipsed by their ideology. Indeed, some academic institutions focus more on indoctrinating students than teaching them critical thinking and writing skills, and welcoming diverse perspectives in the classroom.[19]

And they often show a shocking disregard for the very diversity, inclusion, and “safe spaces” that they claim to champion. For example, who would have thought that, at a congressional hearing in December 2023, the presidents of Harvard, MIT, and the University of Pennsylvania would fail to unequivocally and without hesitation condemn campus speech that called for the genocide of Jewish people? Who would have imagined that a law student at NYU – the president of the Student Bar Association – would be seen tearing down posters depicting the tragic loss of life to Israeli citizens and that administrators at various colleges would fail to immediately condemn Hamas’s despicable attack on Israel? Yet these are the same people who preach diversity and inclusion. It’s a disgrace, and the divisiveness that courts, the media, and academia have fomented in this country is nothing short of tragic. Civil disagreement is a vestige of the past, and collegiality is an aspiration, not a reality. Arrogance has taken precedence over humility, and hypocrisy has replaced honesty.

The United States Supreme Court will almost certainly overrule the Colorado Supreme Court’s decision – perhaps unanimously – and the Court will likely rely on, among other things, the lack of procedural due process afforded to Trump. In so doing, the Court should emphasize that the people, not the courts, should decide who becomes the next President of the United States. And if the people elect Donald Trump, so be it. It is preferable to have the people elect a candidate that you do not support than to have a court enable through dishonest means the election of a candidate that you do support.

After all, you believe in democracy, don’t you?

[1] See Anderson v. Griswold, available at: 23SA300.pdf (state.co.us)

[2] See U.S. Const., Amend. XIV, Section 3.

[3] See Trump v. Anderson, Amicus Brief, amicus brief of Johs Blackmun amicus brief) available at: 20240109145107356_23-719 Amicus Brief Professors Barrett and Tillman Final.pdf (supremecourt.gov)

[4] See Trump v. Anderson, Amicus Brief of Kurt T. Lash, available at: 20240116095552269_23-719 tsac Lash.pdf (supremecourt.gov)

[5] See Jack Healy, The Are the Five People Who Died in the Capitol Riot (Jan. 11, 2021), available at: These Are the People Who Died in the Capitol Riot - The New York Times (nytimes.com)

[6] See Brian Naylor, Read Trump’s Jan. 6 Speech, a Key Part of Impeachment Trial (Feb. 10, 2021), available at: Transcript Of Trump's Speech At Rally Before Capitol Riot : NPR

[7] See Brandenburg v. Ohio, 395 U.S. 444 (1969).

[8] See Naylor supra note 6, available at: available at: Transcript Of Trump's Speech At Rally Before Capitol Riot : NPR

[9] See Anderson, supra note 1, available at: available at: 23SA300.pdf (state.co.us) (Samour, J., dissenting).

[10] See id.

[11] See id.

[12] See, e.g., Justice Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (Vintage, 2006).

[13] See Lawfare, Tracking Section 3 Trump Disqualification Challenges, available at: Trump Disqualification Tracker | Lawfare (lawfaremedia.org)

[14] See Ed Mazza, George Conway Slams Trump With All-Too-Blunt Prison Prediction (Jan. 10, 2024), available at: George Conway Slams Trump With Blunt Prison Prediction | HuffPost Latest News

[15] See Alex Schemmel, Tacey Abrams Says She ‘Never Denied the Outcome’ of 2018 Election Despite Past Claims (Oct. 5, 2022), available at: Stacey Abrams says she 'never denied the outcome' of 2018 election despite past claims | WPDE

[16] See CNN, Hillar Clinton Calls Trump ‘Illegitimate President,” available at: Hillary Clinton calls Trump 'illegitimate president' | CNN Politics

[17] 597 U.S. 215 (2022)

[18] 600 U.S. 181 (2023)

[19] See Eric Kaufmann, We Have the Data to Prove It: Universities are Discriminating Against Conservatives (March 5, 2021), We Have the Data to Prove It: Universities Are Discriminating Against Conservatives | Opinion (newsweek.com)