Donald Trump has taken the country into unexplored legal territory often, but rarely so far as in Tuesday’s ruling by the Colorado Supreme Court. The decision leaves the fate of his presidential candidacy hinging on a constitutional amendment adopted in the aftermath of the Civil War.
In a stunning but not totally unanticipated 4-3 ruling, Colorado’s highest court ordered its top elections official to remove Trump from the state’s ballots on the ground that he is disqualified from the presidency by Section 3 of the 14th Amendment. Originally aimed at the leaders of the Confederacy, the provision disqualifies officials who “have engaged in insurrection” against the United States from holding federal office.
By most readings, it’s one of very few constitutional qualifications for the presidency along with the original document’s requirements, in Article 2, that the president be at least 35 years old and born in the United States. In that sense, the Colorado Supreme Court’s holding is no more exotic than dozens of past court rulings that a candidate fails to meet constitutional qualifications such as age. And were we to adopt the view of Trump’s lawyers, Colorado and other states could not exclude candidates from the ballot even if they plainly fail to satisfy age, residency, citizenship and other requirements.
The potential political impact of the ruling, however, could not be more seismic. It stands to upend the 2024 election by providing a deus ex machina solution to the problem of Trump’s attempt to return to the presidency while under multiple criminal indictments — two of them for attempting to overturn the results of the last election.
But the complications of the case going forward are many and extreme.
The first question is whether the U.S. Supreme Court will take up the case, which seems very likely. This is an unprecedented and hugely important question of constitutional law on which the next election turns. So notwithstanding the justices’ already more-than-full plate — including an expedited review of Trump’s claim of immunity from prosecution over the Jan. 6, 2021, insurrection — the court’s hand will be virtually forced.
Moreover, the court will probably be compelled to act with dispatch. The deadline for finalizing Colorado’s primary ballot is Jan. 5. The state court stayed its holding until the day before that — and, given further appeal, beyond. Ultimately, however, unless the U.S. Supreme Court reverses the Colorado holding, Trump could be barred from the state’s ballots.
So what is the court’s conservative majority likely to do? It has several options if it wants to reverse the state decision.
The least likely avenue is to overturn the factual findings of the Colorado trial court. That’s why the lower court’s finding, after a weeklong trial, that Trump engaged in insurrection was such a significant step toward Tuesday’s decision. Appellate courts are normally loath to reverse factual findings in the absence of a clear error.
That suggests the court will focus on legal issues. I see three possibilities.
The first is the one on which the Colorado Supreme Court parted company with the trial court, holding that the president is an “officer” of the United States subject to Section 3, as most observers believe. Indeed, the trial court seems to have gone the other way mainly out of a last-minute loss of nerve to make a consequential holding to the contrary. Holding that the 14th Amendment doesn’t apply to the presidency would be about the narrowest possible basis for reversing the Colorado Supreme Court’s ruling.
Alternatively, the U.S. Supreme Court could seize on the legal definition of “insurrection.” The trial court used a fairly capacious definition of insurrection that satisfied the state’s highest court. The Colorado Supreme Court in turn noted that although it would be hard to provide an all-encompassing definition, insurrection does include “a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power.” Finding that definition errant would be enough to reverse the Colorado decision.
Finally, the Supreme Court could hold that the Colorado justices shouldn’t have taken up this question in the first place. The rationale would be that Section 3 is qualitatively different from other constitutional qualifications and isn’t susceptible to court resolution.
Colorado’s chief justice, Brian D. Boatright, advanced that reasoning in his dissent, arguing that disqualification on 14th Amendment grounds has to take place somewhere other than a court. “Unlike qualifications such as age and place of birth,” he wrote, “an application of Section Three requires courts to define complex terms, determine legislative intent from over 150 years ago, and make factual findings foreign to our election code.”
Some version of this argument has prevailed in Minnesota and Michigan, where courts have dismissed similar efforts to disqualify Trump. And this U.S. Supreme Court seems particularly likely to issue a ruling along these lines. Consider, for example, its parallel though dubious conclusion that most gerrymandering is beyond its capacity to adjudicate.
But it wouldn’t be quite so simple as finding that the 14th Amendment question is similarly “non-justiciable” under federal constitutional law. That would still leave room for Colorado’s highest court to decide that it has the power to adjudicate Trump’s qualifications based on the state’s constitution and laws.
The nation’s highest court would have to find something in the language of Section 3 that precludes adjudication by a state court. For example, it might hold that the text, structure and history of the section indicate that only Congress can make the essentially political judgment to execute the provision.
In sum, we are in for a wild and woolly constitutional ride over the next 16 days and perhaps beyond, and it’s difficult to know where or how it will end. The two most prominent proponents of the theory that Section 3 of the 14th Amendment is “self-executing,” Laurence Tribe and J. Michael Luttig, have been vindicated by the Colorado decision, but they have also said that once the case arrives at the U.S. Supreme Court, all bets are off.
Indeed they are — except for one. We can safely wager that the court’s opinion will be a landmark in constitutional law and for the country’s future.
Harry Litman is the host of the “Talking Feds” podcast. @harrylitman
