Background
The Colorado Supreme Court disqualified Trump from appearing on the Colorado GOP primary ballot on December 19, 2023 in a 4-3 per curium decision. This was stayed until January 4, 2024 to allow the defendants to appeal the decision to the U.S. Supreme Court, in advance of the deadline of January 6, 2024 for the Colorado Secretary of State to finalized the ballot.
The 133 page per curium opinion (the three dissents are also at this link) of the four justice majority summarizes its ruling as follows:
¶4 The Electors and President Trump sought this court’s review of various rulings by the district court. We affirm in part and reverse in part. We hold as follows:• The Election Code allows the Electors to challenge President Trump’s status as a qualified candidate based on Section Three. Indeed, the Election Code provides the Electors their only viable means of litigating whether President Trump is disqualified from holding office under Section Three.• Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach, and Section Three is, in that sense, self-executing.• Judicial review of President Trump’s eligibility for office under Section Three is not precluded by the political question doctrine.• Section Three encompasses the office of the Presidency and someone who has taken an oath as President. On this point, the district court committed reversible error.• The district court did not abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial.• The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection.”• The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.• President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.¶5 The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot.
The Colorado Supreme Court ruling affirmed, with the exception of the applicability of Section 3 of the 14th Amendment to the Presidency, the 102 page long trial court ruling of Denver District Court Judge Sarah B. Wallace, entered after a five day evidentiary hearing which was followed by closing arguments from the parties several days later.
The trial court held that the contest was procedurally sound, and that the Trump did participate in an insurrection, but held that Section 3 of the 14th Amendment does not apply to the office of President of the United States, a position that none of the seven Colorado Supreme Court justices agree with on appeal. The majority overrules this part of the trial court's opinion, and the dissents don't address this part of the trial court's opinion (but don't expressly disagree with the majority's opinion on this point).
The U.S. Supreme Court does not have jurisdiction to review the questions of state law presented by two of the three dissenting judges in the Colorado Supreme Court and is required to defer substantially to the findings of fact made by the Colorado trial court judge in the case.
A third Colorado Supreme Court judge's dissent, by Justice Samour focused on the constitutional due process adequacy of this particular expedited court process to decide the Section 3 issue. But unlike the other two dissenting opinions, this dissent also does argue that a federal statute must authorize a process to decide the Section 3 issue and is not self-executing, a point upon which the trial court judge and the other six of the seven justices considering the case did not agree.
The Petition For Certiorari Filed
The Colorado GOP has filed a petition for certiorari appealing that decision which identifies three issues it wants the U.S. Supreme Court to reconsider. The U.S. Supreme Court could grant cert on none, one, two, or all of them.
A denial of certiorari would be fatal to Trump's Presidential candidacy, because if it denied certiorari, the Colorado Supreme Court's ruling that Trump engaged in an insurrection within the meaning of Section 3 of the 14th Amendment and that this self-executing provision bars him from holding office as President (or as any other elected official) would be binding upon Trump under the doctrine of collateral estoppel in every other civil legal proceeding going forward.
The questions presented in the Colorado GOP's petition for certiorari are:
1. Whether the President falls within the list of officials subject to the disqualification provision of Section Three of the Fourteenth Amendment?2. Whether Section Three of the Fourteenth Amendment is self-executing to the extent of allowing states to remove candidates from the ballot in the absence of any Congressional action authorizing such process?3. Whether the denial to a political party of its ability to choose the candidate of its choice in a presidential primary and general election violates that party’s First Amendment Right of Association?
These are not, in my professional opinion, Trump's strongest legal issues.
The Colorado Supreme Court's majority opinion's legal arguments on the first two questions presented are extremely solid.
The first question presented in the Colorado GOP's certiorari petition was addressed in ¶¶ 129-159 of the Colorado Supreme Court's majority opinion and summarized neatly in ¶ 158, which states that:
"The simplest and most obvious interpretation of a Constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption.” Lake County v. Rollins, 130 U.S. 662, 671 (1889). The most obvious and sensible reading of Section Three, supported by text and history, leads us to conclude that (1) the Presidency is an “office under the United States,” (2) the President is an “officer . . . of the United States,” and (3) the presidential oath under Article II is an oath to “support” the Constitution.
The Colorado Supreme Court's majority opinion considers whether Section 3 of the 14th Amendment can be enforced without federal authorizing legislation, the second questions presented in the Colorado GOP's Petition for Certiorari at ¶¶ 88-107. I'll quote only the first part of this analysis here.
¶88 The Electors’ challenge to the Secretary’s ability to certify President Trump as a qualified candidate presumes that Section Three is “self-executing” in the sense that it is enforceable as a constitutional disqualification without implementing legislation from Congress. Because Congress has not authorized state courts to enforce Section Three, Intervenors argue that this court may not consider President Trump’s alleged disqualification under Section Three in this section 1-1-113 proceeding.11 We disagree.11 Intervenors and their supporting amici occasionally assert that the Electors’ claim is brought pursuant to Section Three and that the Section is not selfexecuting in the sense that it does not create an independent private right of action. But as mentioned above, the Electors do not bring any claim directly under Section Three. Their claim is brought under Colorado’s Election Code, and resolution of that claim requires an examination of President Trump’s qualifications in light of Section Three. The question of “self-execution” that we confront here is not whether Section Three creates a cause of action or a remedy, but whether the disqualification from office defined in Section Three can be evaluated by a state court when presented with a proper vehicle (like section 1-1-113), without prior congressional authorization.¶89 The only mention of congressional power in Section Three is that “Congress may by a vote of two-thirds of each House, remove” the disqualification of a former officer who had “engaged in insurrection.” U.S. Const. amend. XIV, § 3. Section Three does not determine who decides whether the disqualification has attached in the first place.¶90 Intervenors, however, look to Section Five of the Fourteenth Amendment, which provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” to argue that congressional authorization is necessary for any enforcement of Section Three. Id. at § 5. This argument does not withstand scrutiny.¶91 The Supreme Court has said that the Fourteenth Amendment “is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” The Civil Rights Cases, 109 U.S. 3, 20 (1883). To be sure, in the Civil Rights Cases, the Court was directly focused on the Thirteenth Amendment, so this statement could be described as dicta. But an examination of the Thirteenth, Fourteenth, and Fifteenth Amendments (“Reconstruction Amendments”) and interpretation of them supports the accuracy and broader significance of the statement.¶92 Section Three is one of four substantive sections of the Fourteenth Amendment:
• Section One: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .”• Section Two: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State . . . .”• Section Three: “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office . . . under the United States . . . who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same . . . .”• Section Four: “The validity of the public debt of the United States . . . shall not be questioned.”U.S. Const. amend. XIV, §§ 1–4 (emphases added). Section Five is then an enforcement provision that applies to each of these substantive provisions. Id. at § 5. And yet, the Supreme Court has held that Section One is self-executing. E.g., City of Boerne v. Flores, 521 U.S. 507, 524 (1997) (“As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing.”), superseded by statute, Religious Land Use and Institutionalized Persons Act of 2000, 114 Stat. 803, on other grounds as recognized in Ramirez v. Collier, 595 U.S. 411, 424 (2022). Thus, while Congress may enact enforcement legislation pursuant to Section Five, congressional action is not required to give effect to the constitutional provision. See Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (holding that Section Five gives Congress authority to “determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,” but not disputing that the Fourteenth Amendment is self-executing).¶93 Section Two, moreover, was enacted to eliminate the constitutional compromise by which an enslaved person was counted as only three-fifths of a person for purposes of legislative apportionment. William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. (forthcoming 2024) (manuscript at 51–52), https://ssrn.com/abstract=4532751. The selfexecuting nature of that section has never been called into question, and in the reapportionment following passage of the Fourteenth Amendment, Congress simply treated the change as having occurred. See The Apportionment Act of 1872, 17 Stat. 28 (42nd Congress) (apportioning Representatives to the various states based on Section Two’s command without mentioning, or purporting to enforce, the Fourteenth Amendment). Similarly, Congress never passed enabling legislation to effectuate Section Four.
The third issue presented is likewise, almost definitionally is inconsistent with the fact that Section 3 of the 14th Amendment (which was adopted after the First Amendment) carves out this narrow exception to the First Amendment freedom of association regarding who a political party can back as a Presidential nominee.
The qualification of a person to serve as President under Section 3 of the 14th Amendment is not different in kind from the exceptions that exist in the original 1789 version of the U.S. Constitution such as the bar on running for office following an impeachment if the impeachment conviction provides that this is the case, related to being at least 35 years old, and regarding being a native born citizen with a long period of residency in the United States from the original constitution, or from the term limits limitation of the 22nd Amendment to the U.S. Constitution.
There is just no logical way to distinguish the Section 3 of the 14th Amendment bar to a candidate's Presidency, from these completely uncontroversial qualifications to run for the Presidency, in connection with the kind of First Amendment challenge that the Colorado GOP has presented to the U.S. Supreme Court. Justice Gorsuch has, indeed, already ruled against a similar challenge in an opinion he wrote as a judge on the U.S. Court of Appeals for the 10th Circuit, not long before he became a U.S. Supreme Court justice.
So, it will be much more challenging for the U.S. Supreme Court to disagree with the Colorado Supreme Court on these issues, than on other issues that could have been presented. And, only two of the six conservative U.S. Supreme Court justices need to be persuaded on the issues upon which it grants certiorari for Trump's Presidential bid to be defeated.
To rule in favor of Trump, as six of the nine conservative justices on the U.S. Supreme Court would surely like to do, the U.S. Supreme Court is pretty much forced to make a blatantly partisan and lawless decision on any of these three issues. But this kind of ruling would seriously damage its already badly tarnished legitimacy.
The Colorado GOP would have been smarter to make at least one of the issues presented the question of whether the facts found by the trial court constitute an insurrection for purposes of Section 3 of the 14th Amendment, and whether the facts presented at trial in the case were sufficient to support a finding that Trump had participated in an insurrection.
Similarly, it might have had a better chance arguing that President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was protected by the First Amendment.
But those issues, which would have made it easier for a friendly U.S. Supreme Court to rule in their favor, have effectively been forfeited by its failure to include them as proposed certiorari issues in its petition to the U.S. Supreme Court.
Certainly, the conservative supermajority on the U.S. Supreme Court has the power to keep Trump on the ballot, sensible jurisprudence be damned, and no one could overrule them if they did. But these conservative justices are not all MAGA Republicans who would be willing to compromise their integrity and their institution's long term credibility and power for this cause, particularly for a President who is constantly petitioning them for extraordinary relief in plain vanilla situations, which they only sometimes grant him, and who puts the future of the rule of law and democracy in the United States at risk.
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