The Colorado Supreme Court ruled that former President Donald Trump cannot appear on the state’s 2024 presidential primary ballot “because he engaged in an insurrection on Jan. 6, 2021.”
“A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution,” wrote the court. “Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Your job wasn’t to find him guilty of an insurrection. But alas…here we are.
So how did the Colorado Supreme Court make this decision? Language time!
The Colorado Supreme Court just happened to remind people that justices don’t have to be Originalists. After all, if you stick with the plain language in the Constitution you cannot bend it to your will and agenda (I took out the notations):
If the language is clear and unambiguous, then we enforce it as written, and we need not turn to other tools of construction. However, if the provision’s language is reasonably susceptible of multiple interpretations, then it is ambiguous, and we may consider “the textual, structural, and historical evidence put forward by the parties,” and we will construe the provision “in light of the objective sought to be achieved and the mischief to be avoided.”
Section 3 is not ambiguous. Like 99% of the rest of the Constitution it is crystal clear: You cannot hold office if you engaged in an insurrection or rebellion.
Trump argued that Section 3 doesn’t apply because it doesn’t mention the Presidency.
The justices included the Presidency in the word “office.” They pointed to other parts of the Constitution that refer to the Presidency as an office. But Section 3 does not make that distinction.
I could go with the Colorado Supreme Court regarding the word “officer” since the president is the Commander-in-Chief.
But it bugs me that the justices think this part of Section 3 is the only part with plain language.
Well…
Let’s look at the word engaged. Merriam-Webster has six definitions of engaged. The two that best match the word in section three are “involved in activity” and “involved especially in a hostile encounter.”
I look at the thesaurus to get a deeper understanding of a word.
The strongest synonyms of engaged as a verb “as in start a fight; attack:” face, meet.
The strongest synonym of engaged as a verb “as in interconnect; bring into operation:” join, lock.
It ticks me off that the justices waited until page 103 to dive into the definition of “engaged in.” They used the definition of “engage” instead of “engaged.”
The justices discovered that they had slim pickings regarding case law and “engaged in,” but still decided to stick with precedent from before and during the ratification of the 14th Amendment. They cited a treason case in 1851:
[I]t is not necessary to prove that the individual accused, was a direct, personal actor in the violence. If he was present, directing, aiding, abetting, counselling, or countenancing it, he is in law guilty of the forcible act. Nor is even his personal presence indispensable. Though he be absent at the time of its actual perpetration, yet if he directed the act, devised or knowingly furnished the means, for carrying it into effect, instigating others to perform it, he shares their guilt. In treason there are no accessories.
Trump did none of those. He gave a speech.
These snippets from Trump’s speech say nothing of the sort. They probably point to the fourth bullet point even though Trump literally says “cheering.”
How about the word holding? Trump claimed Section III does not apply to the ballot because it does not prevent him from running for office or even being elected to an office.
The Colorado Supreme Court invoked Hassan v. Colorado. Abdul Karim Hassan, a naturalized citizen, claimed he could be on a ballot as a presidential candidate because the birth requirement only disqualifies him from holding an office, not assuming the office.
The U.S. Court of Appeals for the Tenth Circuit disagreed.
The court reaffirmed a magistrate judge’s opinion: “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.”
Well, um, the courts used Article II of the Constitution as their reasoning for keeping Hassan off the state’s ballots.
The Colorado Supreme Court wrote “that the state would be powerless to exclude a twenty-eight-year-old, a non resident of the United States, or even a foreign national from the presidential primary ballot in Colorado. Yet, as noted, several courts have upheld states’ exclusion from ballots of presidential candidates who fail to meet the qualifications for office under Article II.”
Trump’s argument is Section 3 of the 14th Amendment!
Now we have to look at Colorado’s Election Code regarding presidential primaries: Article 4, Part 12. The Colorado Supreme Court stressed 1-4-1203(2)(a), which is the “qualified” part. They concluded that “qualified” meant the candidate satisfies requirements under the U.S. Constitution.
The Colorado Supreme Court does not address the words until page 67 of the opinion.
“Although, as we discuss below, the meanings of some of these terms may not necessarily be precise, we can discern their meanings using ‘familiar principles of constitutional interpretation’ such as ‘careful examination of the textual, structural, and historical evidence forward by the parties,'” the justices wrote.
Of course, the justices rely on precedent instead of looking at definitions.
For “engaged,” the Colorado Supreme Court turned to the 1871 case United States v. Powell:
The expression “engaged” in insurrection, as used in the amendment, implies a voluntary effort to assist the insurrection, and acts done under compulsion of force, or of a well-grounded fear of bodily harm, do not come within the operation of the provision.)
Then the Colorado Supreme Court focuses on the word “insurrection.” Of course, one of the cases the justices used came from a January 6th case. They also used three other cases, including a provision in the…South Carolina constitution.
Well, I hope I didn’t bore you! It makes me so mad when I witness any judge twisting and ruining the Constitution to achieve their wants or needs. I am an Originalist. I wish more judges and justices felt the same way.
The 4-3 decision is paused to allow for appeal:
The Colorado Supreme Court stayed its ruling until Jan. 4 to give the U.S. Supreme Court time to weigh in.Colorado’s presidential primary ballot must be set by Jan. 5. Ballots start being mailed to military and overseas voters on Jan. 20. Election Day is March 5.All seven justices on the Colorado Supreme Court were appointed by Democratic governors.Chief Justice Brian Boatright and Justices Maria Berkenkotter and Carlos Samour Jr. dissented.
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