Colorado's Supreme Court is Wrong
Let’s start with the facts that nobody is seriously disputing. On December 19, 2020, one of @realDonaldTrump’s posts on his twitter said “Big protest in D.C. on January 6th. Be there, will be wild!” He continued to post numerous times about a rally to oppose the certification of the results of the 2020 presidential election on January 6th. Such a rally did occur on January 6th, and the mob from that rally went on to the Capitol Building to stop Congress from certifying the results of the 2020 election, breaching the premises and entering the building. Numerous deaths resulted, more than a hundred were injured. The crowd were not cleared until mid-evening. In a since deleted tweet, Trump said “a sacred landslide election victory is so unceremoniously & viciously stripped away” (which is claiming that Biden’s victory is not legitimate) and in the same tweet addressed his supporters, saying “[g]o home with love & in peace.” The House of Representatives impeached Trump with “incitement of insurrection” on the 13th of January, the charge was received by the Senate on the 25th of January, and he was acquitted by the Senate on the 13th of February.
On the 6th of September 2023 multiple plaintiffs in Colorado, under the titular plaintiff Norma Anderson, filed a lawsuit with a Colorado district court arguing that Donald Trump must not appear on Colorado’s Republican primary ballot. The suit is directed to Colorado Secretary of State Jena Griswold. The plaintiffs in Anderson v. Griswold argued that Donald Trump engaged in insurrection by encouraging the mob on January 6th, which disqualifies him under Section 3 of the Fourteenth Amendment to the Constitution.
Fourteenth Amendment
Section 3
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.
The basic conclusions of the Colorado Supreme Court’s majority decision was that 1. the district court can rule on whether a candidate can be removed due to the insurrection clause, 2. agrees with the lower court that Trump had indeed engaged in insurrection, 3. disagrees with the lower court that the presidency is indeed an officer of the United States and thus subject to the insurrection clause. Because the Supreme Court agrees with the first 2 and disagrees on the 3rd, which was grounds why judge Wallace ruled against the plaintiff, the majority decision of the Colorado Supreme Court ruled in favor of the plaintiff, ordering Secretary Griswold to remove Donald Trump from the primary ballot, assuming the Supreme Court of the United States doesn’t step in.
There are serious issues with this decision. I have no credibility to speak on the intricacies of Colorado or constitutional law, and you have no reason to trust me, but you don’t have to. Look at the dissenting opinions of the 3 justices not in the majority. Chief Justice Boatright argued that section 1-1-113, the election law that is the grounds for this case, has a limited scope. It was never intended to “ decide whether a candidate engaged in insurrection” (pg 1 of dissent, pdf page 135). Chief Justice Boatright goes on to explain that the election law in question was limited to straightforward challenges of requirements that have a simple objective answer, such as whether someone is at least 35 years old. It was not intended to solve a complex constitutional issue like insurrection. Because this law was meant to be so limited, there’s a statute that said hearings for electoral challenges must be held within 5 days, which this case had well expired. Plaintiffs challenged on constitutional grounds and because a Section 3 disqualification needs 2/3rds from both houses of the United States Congress to overturn, such a disqualification ought to be very severe. There ought to be an insurrection-related conviction to justify the severity, and Donald Trump has not been criminally convicted for insurrection. (This gets into another issue raised numerous times during the case of whether Section 3 is self-executing, with the majority arguing it is and dissenters arguing it is not.)
Justice Seymour’s dissent likewise points to the lack of meticulousness of procedure. He criticizes the lower court for treating “a federal constitutional claim (a complicated one at that) [by] masquerading [it] as a run-of-the-mill state Election Code claim.” (Dissent pg 2, pdf pg 147) He points out that the Amendment 14 itself does not set out procedures, including burden of proof, for such cases. (Dissent pg 3) While Section 5 of the Amendment allows congress to legislate accordingly, they have yet to do so. This means that to what standard a court should even treat such a case is completely unclear, and it is wrong for the lower court to assume a lower burden of proof. The district court assumed the burden of proof as a preponderance of evidence, meaning more likely than not, which is the standard for normal civil cases, as opposed to the much higher burden of beyond a reasonable doubt used for criminal cases. Justice Seymour had one concise sentence to respond to the idea that well, if the feds haven’t acted, we’ll make up our own rules: “Colorado’s Election Code Cannot Supply What Congress Has Withheld” (pdf page 177)
Justice Berkenkotter dissents on the grounds that the lower court’s decision interprets the court’s authority to judge such cases in too broad of a manner. Not only does it vastly expand beyond the historic norm from straightforward challenges, the lower court’s new vast interpretation of court power has no “discernible limits.” (pdf page 190)
The case has already been appealed to the Supreme Court and it is very likely that they will take it up. The dissenting justices on the Colorado Supreme Court make very convincing arguments that Donald Trump’s due process was indeed violated in this attempt to bar him from the primary ballot. Due process, the idea that all individuals must receive the procedures to ensure free trials, is foundational to a healthy legal system. The decision by the Colorado Supreme Court sets a dangerous precedent trivializing due process. Just because by the evidence we can see, Donald Trump seems guilty, does not suffice as proof. He must be given the presumption of innocence and tried in a formal court of law. Those who argue that Trump poses too severe a risk to democracy that we must circumvent democracy to save democracy aren’t hearing themselves. Democracy cannot be saved by undermining a core tenet of the rule of law. I’m confident the Supreme Court of the United States will overturn this egregious decision by the Colorado Supreme Court.
P.S. For the life of me I could not figure out how to properly cite this case as case law. Here is the link to the official pdf of the case instead: https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf
P.P.S. Colorado’s decision already has repercussions. Maine has followed suit, with the Secretary taking initiative instead of the courts. You can read about it from a well regarded nonpartisan source here: https://www.npr.org/2024/01/02/1222389987/donald-trump-maine-election-ballot-2024-supreme-court
Comments
Post a Comment