Qualification in Colorado

This week’s big news from the United States has been the decision on Tuesday by the Colorado supreme court, overturning a district court ruling, that Donald Trump was ineligible to be on the state’s ballot for the presidential election (including the Republican primary, the more immediate concern) under the terms of the fourteenth amendment. The US supreme court will now be called on to settle the issue.

We looked at the fourteenth amendment last year, in the context of a case in New Mexico. Here’s the relevant sentence again:

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.

It would appear, then, that Trump would have at least five possible defences to a claim that he was disqualified under this section:

(a) that his conduct on and around 6 January 2021 did not amount to insurrection;

(b) that the presidency is not an “office, civil or military, under the United States”;

(c) that his oath on assuming the presidency was not “an oath … as an officer of the United States … to support the Constitution of the United States”;

(d) that even if all the tests are met, the provision is not self-executing: he needs to first be convicted in a court or some similar process, not disqualified by administrative fiat; or

(e) that regardless of the merits of the case, the claim should not be entertained because the claimants do not have the required standing, or it has not been brought at the proper time.

The district court judgement considered all of these points. Much of it was devoted to (a), the question of insurrection, and it concluded “that Trump incited an insurrection on January 6, 2021 and therefore ‘engaged’ in insurrection within the meaning” of the provision. As to point (d), it found that while the secretary of state could not act on her own accord to exclude Trump, the court hearing was an appropriate adjudication of the question; it did not require separate criminal proceedings. It also rejected Trump’s claims as to standing, point (e).

But the district court nonetheless kept Trump on the ballot, because it found in his favor on points (b) and (c). Judge Sarah Wallace was not convinced that the presidency was covered by the language of the amendment, and she expressed a “reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of” the provision.

It’s this last finding that the state’s supreme court disagreed with. By a four to three majority, it upheld the other findings and ruled that the presidency is covered by both of the relevant tests. It therefore ordered the secretary of state to exclude Trump from the ballot, but stayed the application of the order until the US supreme court has an opportunity to rule on it.

To get an idea of how that court will proceed – because Trump, of course, immediately announced that he would appeal – we can look at the opinions of Colorado’s three dissenting justices. They did not argue about either the finding of insurrection or the finding that the presidency was covered by the disqualification clause. They focused on point (d) in my list above, saying that the provision is not self-executing, and that Trump’s right to due process required a criminal trial and was not preserved by the sort of hearing that an election petition can receive.

My view is that there is a good case either way on this point; in terms of the purely legal argument, I think the majority probably have the edge. The question, though, is whether it’s sufficiently clear to justify the drastic step of excluding a leading presidential candidate, and I’m not persuaded that it is. The presumption in favor of letting voters make their own choice is a strong one, and the cumulative effect of the various uncertainties in this case suggests to me that it would be best to stick with it.

The US supreme court, with its six to three Republican majority, is almost certain to take the same view. It will be interesting to see, though, how narrow its grounds for decision are, and whether it sticks to the more procedural points or wades into the territory of whether Trump’s conduct amounted to insurrection.

Politically, the effect of the case is hard to assess. Trump uses all of his legal troubles to feed a narrative of victimisation, which may not sway many votes but is good for fundraising. Assuming he is victorious at the supreme court, that may also give him a morale boost. But the further airing of the damning details of his attempt to subvert the last election, including the so far undisputed finding that he engaged in insurrection, is unlikely to endear him to uncommitted voters, either in the primaries or a general election.