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6 Ways to Think About the Decision to Remove Trump From the Colorado Ballot

Photo: David Zalubowski/AP

The Colorado Supreme Court ruled on Tuesday that Donald Trump will not be on the Republican primary ballot on Super Tuesday in March, with four of seven judges determining that the former president violated the 14th Amendment, which they said bars prior officeholders who “engaged in insurrection” from holding office again. The decision has predictably enraged Republicans and delighted some Democrats, but there is a considerable mix of views on the unprecedented decision that Trump will almost certainly appeal to the Supreme Court. Here are six ways to understand the bombshell opinion in Colorado.

The decision was the right call

Several Democrats in Congress have come forward supporting the Colorado Supreme Court’s decision to remove Trump from the primary ballot. Jamie Raskin, who served as a manager in Trump’s second impeachment trial over the attack on the Capitol, told Axios that the original meaning of the 14th Amendment “is precisely to forbid people who have betrayed their oath by trying to overthrow the constitutional order.” Ted Lieu, another impeachment manager, added that “it was very clear to me that the evidence showed Trump called for and incited the mob on January 6.”

The decision is bogus — and there’s legislation to stop it

As one might expect, Trump’s campaign is not particularly fond of the decision. “Unsurprisingly, the all-Democrat appointed Colorado Supreme Court has ruled against President Trump, supporting a Soros-funded, left-wing group’s scheme to interfere in an election on behalf of Crooked Joe Biden by removing President Trump’s name from the ballot and eliminating the rights of Colorado voters to vote for the candidate of their choice,” a campaign spokesman, Steven Cheung, told the New York Times. Trump himself was a little less verbose, calling it “A SAD DAY IN AMERICA!!!” on Truth Social.

Trump’s allies are looking for ways to protect their 2024 candidate: Senator Thom Tillis introduced a bill on Tuesday that would withhold federal funds to help states administer elections to ensure that no states misuse the 14th Amendment for “political purposes.” In Texas, Lieutenant-Governor Dan Patrick threatened to take Biden off the ballot for “allowing eight million people to cross the border since he’s been president.”

A conservative judge thinks it’s a brilliant opinion

J. Michael Luttig is a former federal judge appointed by George H.W. Bush who wrote this summer that Trump should be barred on constitutional grounds from ever holding office again, arguing that the 14th Amendment disqualifies Trump “independently of any such criminal proceeding.” In response to the decision in Colorado, Lutting said that it was a “masterful judicial opinion of constitutional law” that “will stand the test of the time.”

The 14th Amendment does not apply

Harvard Law School professor Lawrence Lessig argues in Slate that the text of Section 3 of the amendment does not apply to the position of the president:

The puzzle in Section 3 is that it seems as if the framers of that text were just sloppy in their enumeration. The clause bars insurgents from being “a Senator or Representative in Congress, or elector of President and Vice President, or [to] hold any office, civil or military, under the United States, or under any State.” The obvious question is why they would enumerate “Senator or Representative” — not to mention “elector of President” — but not the president …

Law professor Kurt Lash has shown that the crafting of Section 3 to omit the president was not an oversight. As his work shows, an earlier draft of the clause expressly mentioned the president; that mention was removed. And many (digital) trees have been felled to address a related issue: Whether the president is properly described as occupying an “office of the United States”? At best, that work is ambiguous.

Trump has not been charged with insurrection, so he shouldn’t be removed from the ballot for it

The Washington Post editorial board provided another argument against the ruling. While Trump was charged in the January 6 case for conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, conspiracy against rights, and a count of obstruction, he was not charged with insurrection:

There’s less of a case, however, that Mr. Trump engaged in this insurrection. The various prosecutors who have indicted him so far have charged him with plenty of crimes — but not, notably, the federal crime of insurrection. As far as whether the former president nonetheless gave “aid or comfort” to “enemies of the United States” who were engaging in insurrection, it’s easy to see it both ways …

Where all this leaves the courts that might eventually adjudicate this subject is unclear. Even less clear is whether, on the level of principle, preventing voters from casting ballots for a candidate of their choice has a place in a nation built on every citizen’s right to have a say.

Banning Trump from the ballot sets a dangerous precedent

New York’s Jonathan Chait argues that a ruling less than a month out from the first primary is “late to change the rules of the game.”

I am not arguing the timing rules out legal intervention. Trump is obviously facing several potentially adverse legal rulings. But most of those crimes are unambiguous, and the timing was determined by Trump himself, who deliberately set out to drag out the legal process as long as possible, specifically in order to force the rulings into the presidential campaign so that he could call it illegitimate.

What I’m arguing instead is that the timing of the court’s ruling makes it more imperative that its reasoning be unassailable. And the conclusion that Trump’s attempt to secure an unelected second term was “insurrection” isn’t solid enough to bear the weight of the outcome it supports.

To deny the voters the chance to elect the candidate of their choice is a Rubicon-crossing event for the judiciary. It would be seen forever by tens of millions of Americans as a negation of democracy. It is not enough that their belief is plausibly wrong or likely wrong. It must be incontrovertibly wrong to support such a momentous step.

How to Think About the Colorado Decision to Disqualify Trump