In a 133 page decision the Colorado Supreme Court ruled that former President Donald Trump is barred from reclaiming the presidency under Section 3 of the 14th Amendment , which prohibits people who “have engaged in insurrection or rebellion” from holding political office. That argument has gained traction in some legal circles in recent months thanks in part to the work of J. Michael Luttig, a prominent conservative legal scholar and former judge on the U.S. Court of Appeals for the Fourth Circuit, who, together with the liberal law professor Laurence Tribe, promoted the idea that the 14th Amendment disqualifies Trump from seeking a second term. (Politico)
I have written on this topic in a prior Markin Report post about section 3 of the 14th Amendment predicting that the Supreme Court would eventually be asked to come up with an answer to the question of whether Trump could be bumped off the ballot before the election or prevented from taking office after an election if he wins: https://markinreport.com/2023/08/31/can-our-constitution-stop-trump-from-being-president
THE BACK STORY- How this Case Gets to the Supreme Court
A Colorado district court first heard evidence about what took place before and after January 6th as it related to Trump’s involvement a brazen and extensive attempt to stay in power after losing the election to Joe Biden. The Colorado district court also admitted into evidence findings from the House Select Committee that added to their factual basis for their decision.
There was a physical attack on the steps of the capitol but that physical assault was only part of the assault on our constitutional order by Trump. If you hear the argument that Trump didn’t really participate in that physical violence and therefore cannot be said to have engaged in an insurrection or rebellion, that argument is not relevant according to many Federalist Society constitutional scholars. The fact that Trump did what he could to stay in power by trying a variety of schemes including fake electors and upending the Justice Department is what’s most relevant when it comes to Section 3 of the 14th Amendment according to Judge Luttig and others who have been prominent voices insisting that Section 3 applies to Trump.
Our Constitution says that you can only be president for 4 years unless you win re-election which Trump failed to do. After your 4 years is up you have to leave. Trump plotted in multiple ways to stay in power instead of leaving as the constitution required him to do. That’s how he ran afoul of constitutional order and that’s why Federalist jurists say he needs to be disqualified from taking office. If Trump is not barred from the primary ballot by reason of section 3 of the 14th Amendment, it seems likely the same challenge will rear its head when we get to the general election and once again if and when Trump wins the presidency unless the Supreme Court ends the discussion.
So far Colorado is the first state to kick Trump off the primary ballot.
To summarize, after the Colorado district court heard evidence and ruled that Trump engaged in an insurrection, the Colorado Supreme Court heard oral argument, assessed the issue and ruled that Trump is barred from being on the Colorado state primary ballot under section 3 of the 14th Amendment. Next, there will be an appeal brought by Trump and his lawyers asking the Supreme Court to weigh in.
On Wednesday, December 27th the Michigan Supreme Court decided, unlike the Colorado Supreme Court, that Trump will be on the primary ballot. That decision is based on the rules governing Michigan law for primary ballots. Pretty much anyone can be on a primary ballot in that state. But when it comes to the general election the question of whether Trump can be kept off that ballot is one that the Michigan Supreme Court could be be willing to consider.
In Maine, the secretary of state decides who can be on the primary ballot. Trump will NOT be on the ballot in Maine because that secretary of state relied on the information used by Colorado courts to determine that Trump engaged in an insurrection and is disqualified.
However, California’s secretary of state just determined that Trump WILL be on the primary ballot.
This is illustrative of the problem arising out of different states determining that Trump can or cannot be on their state’s primary ballot. It is a big mess. The Supreme Court will want to put an end to these discrepancies.
I see 3 potential outcomes.
1) First, the Supreme Court could determine that Section 3 of the 14th Amendment does apply to Trump and Trump is barred as a matter of constitutional law from being on any primary ballot in the country.
2) Or, section 3 of the 14th Amendment does not apply to Trump which would allow him to be on any primary ballot in the country. (There are many potential “offramps” for the Supreme Court such as- Trump wasn’t really an insurrectionist or section 3 of the 14th Amendment doesn’t apply to presidents because they are not “officers” for purposes of section 3 of the 14th Amendment, or there needs to be a congressional mandate to keep a presidential hopeful off of a primary ballot as well as other “offramps” they could use).
3) The Court could refuse to take the case which will force states to decide what to do on their own. (Or Trump could fail to bring an appeal which would have the same result- a mishmash of state decisions.)
Currently, there are over a dozen section 3 lawsuits pending in multiple states across our country. It’s a mess right now.
Some states have dismissed the litigation while others have pending litigation. Some states think the insurrection was what happened on the steps of the capitol. A Colorado district court heard 5 days of testimony and the judge then ruled that Trump did indeed engage in an insurrection but did not conclude that section 3 was intended to be applied to presidents. The district court trial judge basically said section 3 used the definitional word “officer” and did not specifically say a “president” would be subject to this section. The Colorado Supreme Court, however, did put its foot down and decide that presidents are officers and therefore subject to this section of the constitution.
IS IT CLEAR THAT SECTION 3 OF THE 14TH AMENDMENT APPLIES TO TRUMP?
After the Civil War, the Constitution was amended to keep people who had been engaged in that insurrection from running for office, taking office if they won the election, or removing them from office if they engaged in an insurrection while in office. This clause of the Constitution did not specifically limit the scope of application only to the Civil War or any war per se. It has a broader scope that covers insurrection or rebellion. What Michael Luttig would say is that the rebellion or insurrection is AGAINST CONSTITUTIONAL ORDER.
So did Trump engage in a rebellion or insurrection? Did he grab a rifle and go shoot lawmakers? No. But he doesn’t have to do that under this section of the Constitution if you apply Luttig’s thinking. His defiance was a rebellion against the rules set out in our Constitution that prescribes the way power is transferred after an election. Anyone who has seen what happened on January 6th knows that it was Trump’s last ditch attempt to cling to power in defiance of Constitutional law and order. So the question of “what is an insurrection” and did Trump engage in one or give aid and comfort to those who did might seem obvious unless you live in a cave or you only watch Fox, OANN and other conservative media. It seems obvious that he did if you subscribe to fact based media accounts.
It is that effort to prevent what our democracy relies on, the peaceful transfer of power, that marks Trump as unqualified from the get go to run for the office of president again. He acted in defiance of that adherence to constitutional order that he swore to uphold which is the backbone of our democracy.
LACK OF A ROAD MAP
Section 3 of the 14th Amendment has not been extensively relied upon in past court decisions which means we do not have a lot of prior cases to look to for guidance. There is a reason for that. Insurrections against our Constitution and our country have only happened twice in the history of our country. The first instance was the Civil War. The second was Trump’s attempted coup to stay in power after losing to Joe Biden. If there had been more insurrections courts would have had to make more determinations and legal interpretations about section 3 of the 14th Amendment.
Trump is truly remarkable for being a one-man crime wave. He has done more to challenge our norms and laws, including our Constitutional laws, than any other single person in the history of our country. The reason is that he not only objects to rules and laws he doesn’t like, he ignores them and defies them, He refuses to abide by them and urges others not to follow by them either.
That raises all kinds of issues about whether the law can be applied to him or whether he is above the law as he keeps saying he is. Trump acts as if he is already the dictator he wants to be. If he does somehow get back into the presidency, he has made it crystal clear that he will dismantle our democracy and take charge as an autocrat or dictator. (See Project 2025 for the blueprint the rightwing plans to implement to end our democracy).
If Trump gets elected again we cannot say we were not forewarned. By him.
54% OF AMERICANS APPROVE OF THE COLORADO SUPREME COURT DECISION TO BAR TRUMP FROM THE BALLOT
The most recent YouGov poll shows that a majority of Americans approve of the Colorado Supreme Court decision to keep Trump off the ballot. Of that group 84% are Democrats, 48% are Independents, and 24% are Republicans. That 54% number would be higher if Trump had already been convicted for his coup plot to stay in power. A conviction in Jack Smith’s case or Fani Willis’ case would almost certainly move many more Americans to wake up to the danger Trump represents to our democracy.
But our courts move slowly and deliberately and Trump is doing everything he can to try to delay his criminal trials. The Supreme Court just seemingly helped Trump out by refusing Jack Smith’s request for expedited review of the issue of immunity. That means this case will need to be reviewed first by the DC appellate court. But there could be good news about that turn of events. The DC appeals court is expediting its review and it looks like it will come up with a decision very quickly. The issue of immunity is a no-brainer. The Supreme Court may be positioning itself to accept the decision of the DC appeals court. That would lighten its burden.
The Supreme Court has been inundated with all the Trump matters they have to research and decide. If the Court quickly denies cert on the immunity issue, accepting what the DC appeals court decides, Jack Smith’s case could still be on track to finish up before the 2024 election. Trump knows that once he is convicted of these pending crimes, millions of general election voters will not be able to bring themselves to vote for him again. More Republicans would just stay home. There are not enough MAGAs to get him over the general election finish line.
Behind closed doors, non-MAGA Republicans would love it if Trump would eat a fatal cheeseburger, have a heart attack and just go away. They fear the MAGA base so much, however, they have either stayed silent or become Trump’s enablers. With painfully few exceptions, Republicans are the opposite of profiles in courage.
WHAT WILL THE US SUPREME COURT DECIDE?
Given that the Supreme Court is very right wing and that three of the justices were appointed by Trump, many people think that the Supreme Court will simply protect Trump and find that Section 3 of the 14th Amendment does not apply to him and that he can be on primary ballots across the country. I think the calculation may be more complicated than that.
There are many competing interests at work here.
- This Court is very politically sensitive right now. They understand the effect of their decisions on Americans. They are concerned about how the Court is viewed especially in light of the Dobbs decision and exposes about Thomas and Alito being bought by rightwing donors. Millions of Americans are convinced that this Court is corrupt and too extreme. If the Court sides with Trump here it will be more evidence that the Court is corrupt. But if the Court keeps Trump off the ballot it will take the decision about the presidency out of the hands of the voters. This Court is damned if they do and damned if they don’t. The issue is a hot potato the Court probably doesn’t want to decide. Like most courts, their ultimate decision, even if they deny it, will be results oriented. In other words, they will decide based on the result they want to get.
- John Roberts has a legacy issue. He does not want to be the Chief Justice of the Supreme Court that allowed another Trump presidency given that Trump has already vowed to dissolve constitutional order and end our democracy. If Trump returns to power, that would also herald the end of their supreme power as a final decider, a power that is wielded by the Supreme Court. Why? Because the dictator is always eventually the ultimate decider not the court system. It’s hard for me to believe these self-important jurists would be willing participants in their own suicide pact.
- This court has also been big on states rights and state power.
- And, finally, the right wing justices are also Federalist Society members. They believe in Constitutional order and have faith in our democracy. Again, it is hard for me to believe they want Trump back in power when it is clear he would destroy what they deeply believe in and have spent their lives studying and understanding, namely constitutional order.
Given these concerns, what I think this Court would like to do is find a way to return the decision to the states to decide if Trump should be on the primary ballot in their state. That way the burden will be on each state and off of the Supreme Court. I believe this could be done if the court rejects cert but I am not a constitutional scholar so this is speculation.
In the end, red states would likely put Trump on the primary ballot and blue states would kick him off. The battleground states would be the ones where the fight to keep Trump on the ballot or kick him off would be the most consequential. The composition of each battleground state’s Supreme Court would matter the most if that were the case.
If the Supreme Court decides to handle this matter in this way, the result would disrupt but not stop Trump’s chances to be re-elected without taking the decision totally away from the voters and without the Supreme Court being squarely to blame by the voters in our divided country for keeping Trump on or taking him off the ballot.
The impulse to let the states decide might, however, could be overcome by the need to get settled application of constitutional law that applies to all 50 states. After all, that is the role of the Supreme Court. If that need prevails, then I think we will see the Supreme Court find a way to rationalize why Trump will be permitted to be on the ballot in every state despite section 3 of the 14th Amendment.
It would then be up to the voters to make a choice to re-elect him or not. Much will be at stake.
Stay tuned. This is going to get even more interesting.