Colorado Removes Trump from the Ballot. Now What?

A series of threshold legal questions to be addressed by SCOTUS raise significant challenges for the plaintiffs

Photo: Carlos Barrio / Reuters

The Colorado Supreme Court dropped a bomb on Tuesday that could have enormous consequences for the election next year—or could go exactly nowhere fast.

Six plaintiffs—four Republicans and two independents—brought suit under Colorado’s election laws to disqualify former president Trump from the state’s ballot under Section 3 of the 14th Amendment.

That section, enacted during Reconstruction following the Civil War, bars officers of the U.S. from holding federal elected office if they previously swore oaths to support the Constitution, but then engaged in insurrection or aided or gave comfort to its enemies.

In an earlier piece, I noted how the trial court’s opinion was actually a dangerous one for Trump, even though it ultimately came out his way. That court found that Trump was indeed an insurrectionist, and that his speech on January 6 inciting the mob was not protected under the First Amendment. 

The only reason the trial court found for not disqualifying Trump was a painfully strained argument that Trump was not an “officer” of the United States. 

The Colorado Supreme Court, in a 4-3 decision, disagreed with that technical argument but agreed with the rest of it, locking in the ruling that Trump is in fact an insurrectionist.

The case now heads up to the U.S. Supreme Court where its outcome is uncertain at best. Folks naturally have a lot of questions, so I’ll walk through some of the big ones:

1. How soon will this be argued before and decided by the High Court?

2. What are the main legal and constitutional issues SCOTUS will examine?

3. What are the possible outcomes, and how might they affect the election?

If you’re wondering, no, my discussion will not include a solid prediction for how the Supreme Court will rule. No one knows for sure. But I will discuss some assumptions and precedents we should keep in mind that might affect the ruling and raise some issues that, were the Court to latch on to them, could end the matter.

How soon will this be argued and decided?

The Colorado Supreme Court issued its ruling but immediately put it on hold until January 4, 2024, pending appeal. That date is significant because the following day is the final date for the Colorado Secretary of State to certify candidates for the March 5 primary, which falls on Super Tuesday.

But all that Trump has to do is file notice of appeal (which he will do very soon), and the hold placed by the Colorado Supreme Court on its own ruling will remain in effect. As law professor Steve Vladeck noted, practically speaking this means that if the Supreme Court has not ruled on the matter by January 5, Trump’s name will appear on the ballot for the March 5 primary.

The parties will need a chance to fully brief the Court, and so it is unlikely we will have a ruling by then. That means the Court could simply focus on the general election ballot, and it wouldn’t necessarily have to rule quickly. That said, the justices understand that their ultimate ruling will affect many other cases now pending around the country, and that it is in the interest of our nation to get a prompt resolution of this question. 

In the past, the Supreme Court has been able to move very quickly to settle a question that affects a national election. The Court heard and issued its opinion in Bush v. Gore in a matter of days, for example. This case doesn’t yet rise to that level of urgency, but it is up there. And the parties will probably both ask for an expedited hearing of the matter.

Note that the Supreme Court is already considering another major legal question concerning Trump’s claim of absolute presidential immunity from criminal prosecution. Trump’s response to the petition for review is due today, and after that the Court, if it accepts the petition as is likely, will set a timetable for briefing and argument.

It’s going to be a very busy holiday season and new year for our highest court and the legal teams involved in these appeals.

What are the main legal and constitutional arguments SCOTUS will examine?

It’s easiest to look at this case as presenting some threshold legal questions as well as some deeper, fact-based ones should the threshold matters fail to bar the case.

I’m not bothered by the first of these questions, but the second and particularly the third give me considerable pause. It is why I’m a bit skeptical of a positive outcome for the plaintiffs. Let’s walk through them now.

Threshold Question 1: Is Trump an “officer” of the United States within the meaning of Section 3 who took an oath to “support” the Constitution?

I was taken aback when I first saw the ruling of the district court in this matter. She had ruled that Section 3 should be interpreted, based on the history of the Amendment, not to include Trump because he was not an “officer” for purposes of Section 3. She further held that his oath to “preserve, protect and defend” the Constitution was a different, more specific oath than one to “support” it, and therefore, again, Section 3 did not apply to him.

Bizarre and inexplicable, but that was her ruling. 

(My personal theory is that she threw this monkey wrench in to avoid being the lone judge that took Trump off the ballot in the state, which would open her up to attacks from Trump’s supporters. Perhaps she wrote a strong opinion on the facts precisely to leave it to the state Supreme Court to overrule her on the technical law, but we’ll never know.)

We can make short work of the judge’s rulings on Section 3’s applicability. 

First, laws and constitutional provisions should be given their common meanings, not encoded with secret ones. Is the president an officer? Yes, certainly, just look at any dictionary definition. 

Second, the Constitution should be read consistently. It refers to the presidency as an “office” 25 times. Are we to ignore all of those instances? Even the Impeachment Clause contains a “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” If Trump were correct, then even a conviction after impeachment would not disqualify a president from running again, which is manifestly absurd.

Third, it makes zero sense that the drafters of the Section sought to preclude Confederate officials from holding office—except for the most powerful office in the country. The historical record contains no indication that this was anyone’s intent.

Lastly, the word “support” in plain terms includes words like “defend.” If anything, the specificity of the presidential oath of office adds requirements to the oath rather than reduces its reach. The fact that the trial court judge twisted herself in knots to find otherwise, given how easily this could be batted down, is indeed curious.

Threshold Question 2: Is Section 3 of the 14th Amendment “self-executing”?

This can feel like a confusing question because a lot of people don’t really understand what “self-executing” provisions are in the first place. A “self-executing” provision of the Constitution stands on its own. That is to say, it does not require some additional legislation by Congress in order for it to have any force or effect. 

The plaintiffs argue that Section 3 is self-executing and therefore Congress doesn’t need to have acted to create laws in order for the plaintiffs to bring their case. Trump’s lawyers argue the opposite, noting that Section 5 of the Amendment states that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” They cite historical instances where Congress did step in to make such laws. 

The issue of Section 3’s self-executing status has never been litigated before the Supreme Court, but there are some useful analogies.

Take for example other portions of the Reconstruction Amendments, Nos. 13, 14 and 15. The Supreme Court has held that other sections of those Amendments are in fact self-executing and need no further action from Congress. For instance, Section 1 of the 14th Amendment states as follows:

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….

The Supreme Court held in 1997 in the case of City of Boerne v. Flores that this provision is self-executing, noting, “As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing.”

Further, while Congress may create laws to help effectuate this provision, it is not required to do so for those laws to have any effect. And that makes perfect sense. After all, why pass a Constitutional Amendment with a section that Congress could simply nullify by refusing to pass laws enabling it to be executed? That can’t be the right answer.

Plus, the language of Section 3 itself seems to indicate that Congress only has the power to override a disqualification of a federal official by a vote of two-thirds. Why have that provision in there at all, if you need at least half of Congress to pass the law to begin with? 

Trump hangs his hat on an old case, authored by former Supreme Court Chief Justice Salmon Chase in 1869 while he was “riding circuit” in a non-binding matter in Virginia. A criminal defendant had sought to toss out his conviction on grounds the judge, a former Confederate officer, was disqualified from holding office under Section 3. 

Chief Justice Chase had to determine whether Section 3 “operat[ed] directly, without any intermediate proceeding whatever, upon all persons within the category of prohibition, and as depriving them at once, and absolutely, of all official authority and power.” He decided it did not, given the sheer number of people who would be affected in government across the Southern states should it be applied in a blanket manner.

Chase found that the main purpose of Section 3 was to “inflict upon the leading and most influential characters who had been engaged in the Rebellion, exclusion from office as a punishment for the offense”—and not to sweep up everyone. He then found that only an Act of Congress could determine who should be affected, meaning that Section 3 in his mind was not self-executing.

This opinion is non-binding, even if written by a Chief Justice riding circuit (meaning, sitting as judge in a lower court). It has also been the subject of a great deal of academic criticism, given that the other provisions of the Reconstruction Amendments are self-executing. Also, to the extent that Chase wanted there to be a mechanism for determining who should be included, that was established by the Colorado legislature in the form of Colorado’s ballot requirements: a quick court proceeding under its election laws. And that’s precisely what just took place in this case.

Still, that precedent is a problem, and it raises a valid question over whether Section 3 can really be considered self-executing. The case was enough for the majority to lose one of its votes to the dissent. But as I explain below, even if Section 3 is self-executing, that doesn’t mean states can simply apply any process they want. 

Threshold Question 3: Are state courts the right place to decide claims of disqualification of presidential candidates?

Plaintiffs filed their action under Colorado’s Election Code, which generally forbids the Secretary of State from placing someone on the ballot who is unqualified to stand for election. An action under this Code doesn’t normally allow for a lengthy trial, with built-in opportunities to discover evidence, depose witnesses, and build the case or the defense.

That’s because normally the questions over “qualifications” are straightforward. For starters, the U.S. Constitution sets forth requirements for candidates for president, including citizenship, residency and age. State officials routinely act to disqualify candidates who don’t meet these requirements.

But Section 3 added another requirement that hasn’t come up much over the past 150 years: that the candidate isn’t an insurrectionist who previously swore an oath to support the Constitution. 

In some sense, this is just another requirement. But in another sense, it is more subjective and requires courts to weigh in. After all, someone has to adjudicate the question of eligibility if it is raised, and if not the courts, then who? And how?

Trump claims this is a constitutional question, not something that state officials should be deciding on their own. But even if that were true, that’s not what’s happened here. The Colorado Secretary of State was not prepared to proactively determine that Trump was ineligible. It was only after she was sued to prevent her from adding him to the ballot that this became a question for the courts, where it rightfully belongs.

Take the example of someone claiming falsely that President Obama wasn’t born in the U.S. To prove that he was not eligible to run for office, plaintiffs would have had to file suit and show evidence of their claim, while Obama’s team could counter with evidence, say, hospital records and a birth certificate issued in Hawaii. But just because the Constitution sets forth the birth requirement doesn’t mean any challenge becomes a constitutional one. Instead, it is a question of fact for a court to decide.

In this sense, the claim that Trump is an insurrectionist is also a claim that a court needs to take seriously, in which it weighs the facts and the evidence, considers defenses, and issues its ruling.

But this is precisely where the majority lost two of its votes, and where I believe the Supreme Court could end the case. 

The dissenters argued that Colorado’s election law failed to provide Trump with adequate due process for adjudicating the question. As Justice Samour noted in his dissent, the truncated hearing

lacked basic discovery, the ability to subpoena documents and compel witnesses, workable timeframes to adequately investigate and develop defenses, and the opportunity for a fair trial—to adjudicate a federal constitutional claim (a complicated one at that) masquerading as a run-of-the-mill state Election Code claim.

This all flowed from the fact that Congress never passed a law that explained how courts are supposed to adjudicate questions around insurrectionists. Should it be a trial by jury? A bench trial? Must it be a criminal case, or will a civil case suffice?

In the absence of guidance from Congress, are states really free to just apply their own rules, even if that results in a lack of due process? 

This is another way of saying that the case may be “non-justiciable” because there isn’t any clear guidance from Congress around how to treat these cases. And in the absence of that guidance, Trump’s lawyers will argue, courts should not leap in to act like legislators. 

I could see several Supreme Court justices take a look at the chaos that would result from a hodgepodge of states trying to apply their own laws to presidential disqualification and conclude, “Nope. For such a consequential decision, we need much more by way of laws, rules and process.”

Notably, there is a federal statute that criminalizes insurrection and disqualifies those convicted of it from holding federal office. But Trump wasn’t charged under it. Had he been, there would have been ample due process afforded him while he defended it. Here, as the dissent notes, the Elections Code hearing was rather slap-dash, and it resulted in a huge ruling against him. 

Should state district courts really have such power? Could it be abused by the other side against a Democratic candidate one day?

Somewhat ironically, our current Supreme Court has normally been eager to return to the courts any questions where Congress has left the law ambiguous. But when it hits upon a thorny question that has no easy answer, and where Congress has made no express laws and offered no guidance, it has been more likely to punt. If the Supreme Court is inclined to rule that Trump has a right to remain on the ballot, it will likely have a lot to do with these reasons.

Assuming the Supreme Court gets past all of these threshold questions—and that’s a big assumption—it will come upon the facts of the case and the ruling itself. Here, there will be far less wiggle room. The findings and rulings of the district court will be accepted for purposes of the appeal process so long as they are supported by substantial evidence. And there is plenty of evidence that Trump incited the insurrection at the Capitol. 

If there are any justices inclined to let Trump off, they might find at this point that his speech was protected under the First Amendment as a matter of law. This would be a stretch, given all the evidence that he planned the march on the Capitol and what his actual words and deeds were that day. But I put it out there as a possibility because, again, we don’t know with this Court.

What are the possible outcomes and how might they affect the election?

The Supreme Court could affirm the decision of the Colorado Supreme Court, meaning Trump would stay off the Colorado ballot. That would supercharge similar cases pending in several jurisdictions around the country. But this might have less of an impact than people assume. 

First, Colorado is a reliably “blue” state these days, and so Trump’s absence from the ballot won’t change the electoral math for the general election. Nor will it likely keep him from winning the GOP presidential primary. We would have to see how such a ruling from SCOTUS encourages or advances similar litigation in other states, particularly the “purple” battlegrounds. If Trump is kept off the ballot in any two of them, that would likely end his chances of becoming president.

Second, the decision might not be easily translatable to other states. Colorado has a specific Election Code that made a challenge to Trump’s candidacy a rather straightforward matter that could be heard quickly in state civil court. But other states don’t necessarily have such provisions, and in some battleground states courts have already ruled that it’s not proper to keep Trump off the primary ballot because primary elections are run by the parties, which have an associational right to run them as they like. This could result in multiple jurisdictions holding trials or mini-trials over the matter, with all kinds of questions arising over whether rulings in one court affect proceedings in another.

Third, the notion that some courts are moving to remove Trump from the ballot will only deepen the conviction by his followers that he is being politically persecuted. It would likely widen the political divide between Americans. For example, rulings by courts or verdicts by juries in red states that find Trump was not an insurrectionist might create not only two incompatible factual worlds but two different elections entirely.

On the other hand, the Supreme Court could simply overrule the Colorado Supreme Court, answering any one of the “threshold” questions in the negative and ending the matter. And honestly, there is a decent chance of this. As discussed above, there are some easy “outs” for any Court unwilling to wade into this particular, politicized fight. And if the arguments were enough to split the all-Democratic Colorado Supreme Court, which is no ally of Trump, I suspect that they will face a tougher crowd with this conservative SCOTUS.

The Colorado Supreme Court appears to understand that it has an uphill fight, and it picked its rationales and cases with the Supreme Court’s review in mind. At one point in the opinion, the majority cites Justice Gorsuch, who used to serve as a federal circuit judge with jurisdiction over Colorado. In Hassan v. Colorado, then-Judge Gorsuch wrote about “a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

Smooth move, Colorado Supremes. But it may not prove enough.