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Trump’s Ballot Disqualification: What the Right Gets Wrong



Absent any action from SCOTUS, the Colorado ruling will go into effect on January 4th

On December 19th, the Colorado Supreme Court issued a historic ruling in Anderson v. Griswold.  In a 4-3 split, the Court held that (1) Donald Trump is not qualified to be President of the United States under Section 3 of the 14th Amendment and (2) that the CO Secretary of State cannot place his name on the state’s primary ballot. The Colorado Supreme Court issued a pause on its ruling from going into effect to allow the U.S. Supreme Court to weigh in. This is an unprecedented move, but it shouldn't necessarily be viewed as incorrect, especially given the unprecedented actions taken by President Trump that directly led to this ruling.


The case is complicated. Let’s start with the basics: a group of GOP primary voters alleged that President Trump is not “qualified” under the Colorado Elections Code to be President because Section 3 of the 14th Amendment bars officers of the United States from office for “engag[ing] in insurrection.” The Colorado Supreme Court determined that the presidency was covered by this prohibition and that Donald Trump had “engaged in insurrection” by inciting the mob that stormed the U.S. Capitol on January 6th.


As expected, many politicians and pundits on the Right reacted hysterically to the decision. But beneath the uproar, many conservatives are broadcasting incomplete portrayals of both the law and the Constitution in this case. They ironically ignore the same power of state legislatures within the Electoral College which they often vociferously defend when it serves their interests. Most recently, Trump’s lawyers pushed the “Independent State Legislature Theory,” which essentially argued that partisan state legislatures could overturn the will of voters. 


The criticism from the Right fails to correctly identify the legal authority which the Colorado Supreme Court acted under, so it becomes easy for them to argue that the Court acted absent any authority at all. One House Republican, speaking to Axios, insisted that the U.S. Supreme Court would surely overturn the Colorado Supreme Court’s decision because “there is no way that the 14th Amendment was intended to be applied this way.” On her show, The Ingraham Angle, Laura Ingraham—a former Thomas clerk—cried that “they [took] the Constitution and turned it into a piece of Silly Putty for political ends. That is classic judicial activism, is it not?” 


In essence, the right-wing narrative is simple: the 14th Amendment does not give state courts the power to strike a candidate’s name from the ballot, and by doing so, the Colorado Supreme Court twists the Constitution to take more power than the 14th Amendment gives. 


There’s one problem with this argument: the Colorado Supreme Court acted under the command of the Colorado Election Code, not the 14th Amendment. And that distinction makes a world of difference. 


To understand why the state law in this case is so important, we need to first understand the constitutional power of the states within the Electoral College.


In 2024, Colorado will have 10 electoral votes. Article II, Section 1, Clause 2, of the U.S. Constitution—the Electors Clause—asserts each state’s authority to assign their electoral votes “in such Manner that the Legislature thereof may direct.” In Colorado, as is the case with most states, the state legislature chose to assign their electors to the winner of a popular vote. To provide for these popular elections, using the power given to the states by the Electors Clause, Colorado’s General Assembly adopted the Election Code. Among other things, the Election Code commands that only “qualified” candidates be listed on the ballot. Colorado’s electoral votes, just like those of other states, come with conditions.


Addressing the Electors Clause, the Colorado Supreme Court determined that “the U.S. Constitution authorize[s] states to assess the constitutional qualifications of presidential candidates” and that state courts can assess the constitutional eligibility of candidates, “provided their legislatures have established such authority by statute.” The Election Code satisfies this provision: Limiting ballot placement to “qualified” candidates must necessarily exclude candidates who are constitutionally prohibited from assuming presidential office. The Griswold majority concluded that President Trump failed to meet the requirements of Section 3 and thus could not be a “qualified” candidate.


When deciding if state courts can remove Trump from the ballot, the explicit command of state law is critical. On December 27th, the Michigan Supreme Court denied review of a similar 14th Amendment argument and left Trump’s name on the state’s primary ballot. Dissenting from the majority’s decision, Justice Welch argued that Michigan state law had a critical difference from Colorado’s Election Code. While Colorado law requires candidates to be “qualified,” Michigan law makes no such requirement. In the Michigan case, there was no provision that authorized state courts to assess the presidential eligibility of a candidate for primary ballots. The contrast between the Colorado and Michigan decisions should highlight the importance of state electoral law and the exact authority it gives to state courts.


Beyond Section 3, the U.S. Constitution imposes clear restrictions on who may become President. The Eligibility Clause in Article II requires the President to be a natural-born citizen, at least 35 years of age, and a resident of the United States for at least fourteen years. 


Before ascending to the U.S. Supreme Court, then-appellate Judge Gorsuch upheld Colorado’s exclusion of a citizen not born in the United States from the presidential ballot in Hassan v. Colorado (2012). Hassan had argued that even if he was ineligible from assuming office, it was unconstitutional for Colorado to remove him from the ballot. To this, Gorsuch responded, “A state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” 


If Colorado has the power to enforce requirements under the Eligibility Clause, why would the state lack the power to enforce requirements imposed by the 14th Amendment?


It is true that the disqualifying criterion in Section 3—“engaged in insurrection”— is less objective than those found in the Eligibility Clause. And many dispute that Section 3 imposes any presidential criteria at all. But these are secondary issues. Because the Colorado Supreme Court only reaches the 14th Amendment question under the command of state electoral law, critics should at least respect their authority to interpret the Constitution even if they disagree with their interpretation.


Most legal analysts think the U.S. Supreme Court is all but guaranteed to take this case. So how will this issue of state power affect their decision?


Michael Luttig, a conservative and former Fourth Circuit Appellate Judge, is confident that the U.S. Supreme Court will uphold the Griswold decision. The main reason? The Colorado Supreme Court made it clear in its 133-page opinion that it “resolved each and every [constitutional question] as required not just under state law, but, more importantly, under federal constitutional law”—the Electors Clause.


If the justices agree with Luttig’s assessment, there are a few routes which the U.S. Supreme Court could take. First, they could simply hold that while the Colorado court had the authority to consider this question, their interpretation was incorrect: the 14th Amendment imposes no presidential eligibility criteria. This option would not only be contentious (many constitutional scholars from across the political spectrum, using a variety of interpretive methods, would disagree), but also far-reaching: In approximately 15 states, there are ongoing cases challenging President Trump’s eligibility to appear on primary ballots. This decision would represent the most significant political involvement in a presidential election by the Court since Bush v. Gore.  


Given this, the Supreme Court could exercise deference in a few different ways. First, the Supreme Court could state, definitively, that the 14th Amendment imposes presidential criteria, but it is up to each state to decide if their law calls for constitutional assessment of eligibility. This ruling would not “strike Trump from every ballot” as many conservatives claim because his removal depends on the exact letter of state law. This option would clarify a key constitutional question and still give states the ultimate say over determining candidate eligibility. A second option would be to recognize that state courts, so long as their electoral law grants it, have the authority to decide if the 14th Amendment imposes eligibility criteria at all. This second option does not clarify the pertinent constitutional issue as much as the first, but it also gives more leeway to state legislatures in the authority that they prescribe to state courts. 


The Framers recognized that the Supreme Court’s awesome and “terrible” power to undo the actions taken by the federal and state governments must be balanced with restraint. Past Supreme Courts have shown apprehension toward issuing broad-sweeping declarations that curtail the sovereignty of the states and could significantly impact the democratic process. As this case will impact both state authority, under the Electors Clause, and one of the most important elections in this nation’s 247-year history, judicial deference to the states is highly warranted. Most recently, California decided to keep Trump on the primary ballot while Maine decided to remove him. This is the precise beauty of federalism. The Supreme Court should recognize that it may be best to leave this critical 14th Amendment question to those who control their electors in the first place: the states.

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