How the Supreme Court might rule on Trump’s Colorado ballot case

It is all but certain that the US Supreme Court will hear an appeal of the Colorado ruling quickly.

State courts in Minnesota, New Hampshire, and Michigan have refused to disqualify Trump. Clearly, the nation needs a uniform answer that only the Supreme Court can provide.

In a decision that is a profile in legal courage, the Colorado Supreme Court this week became the first court in the nation to find that provisions of the post-Civil War

14th Amendment disqualify Donald Trump from running again for the presidency.

In doing so, the court boldly affirmed the legacy of our most bloody war — that no one who violates the federal oath of office by inciting insurrection against the United States should ever be allowed to hold federal office.

Section 3 of the 14th Amendment was added to the US Constitution in 1868 to ensure that Confederate rebels could not someday hold federal office. Suppose former Confederate president Jefferson Davis had tried to run for the presidency. Davis was never tried for insurrection but the historical record is clear that the framers of the 14th Amendment meant to disqualify him and other oath-breaking rebels from ever running for federal office. As one framer of Section 3 noted on the House floor, “the loyal alone shall rule the country” and traitors would be “cut off … from all political power in the nation.”

For all the differences between Davis and Trump, the Colorado Supreme Court decision makes clear that what was true in 1868 is true today — no one who swore an oath to defend the Constitution but then engaged in insurrection can be trusted to hold federal office.

Section 3 of the 14th Amendment prohibits a person from holding any “office, civil or military, under the United States” if that person, as “an officer of the United States,” took an oath “to support the Constitution of the United States” and subsequently engaged in insurrection.

The case came before the Colorado high court on an appeal from a lower court ruling by District Court Judge Sarah Wallace. She amassed factual findings that showed unequivocally that Trump incited insurrection through his actions and words on and before Jan. 6, 2021. Significantly, the Colorado Supreme Court affirmed the lower court’s factual finding that “the events of January 6 constituted an insurrection and that President Trump engaged in that insurrection.”

But, as a matter of law, the lower court oddly found that the presidency was not an “office” under the United States to which Section 3 applies, since that section specifically mentions other offices such as senators and representatives but not the presidency.

Halfway down her decision, Wallace placed the law in a kind of purgatory — Trump sinned but the law could not remove him from the ballot for those sins. Something had to give.

In airtight reasoning, the state’s high court noted that the plain meaning of “office” as understood at the time of the framing and ratification of the 14th Amendment surely included the presidency. Indeed, “the Constitution refers to the Presidency as an ‘Office’ twenty-five times.” As the court noted, “it seems most likely that the Presidency is not specifically included because it is so evidently an ‘office.’” Any other interpretation would lead to the bizarre conclusion that Section 3 bars insurrectionists from serving in Congress but not from becoming president.

The lower court also found that Section 3’s disqualification is triggered only when a person breaks his oath “to support the Constitution” by engaging in insurrection. But while senators and representatives do take an oath that includes the literal promise “to support the Constitution,” the presidential oath is worded differently, binding the president to “preserve, protect and defend the Constitution.” The Colorado Supreme Court rightly found that the difference in oaths was without significance, since the plain and common-sense meaning of swearing to “preserve, protect and defend” the Constitution is to swear to “support” the Constitution.

It is all but certain that the US Supreme Court will hear an appeal of the Colorado ruling quickly. State courts in Minnesota, New Hampshire, and Michigan have refused to disqualify Trump. Clearly, the nation needs a uniform answer that only the Supreme Court can provide.

Predicting Supreme Court decisions in unchartered territory is a fool’s errand. But skepticism is proper as to whether a Trumppacked court has the backbone to disqualify Trump. The court could follow other dissenting opinions below in finding that, in a case of extraordinary magnitude, equally extraordinary protections were required to protect Trump’s right to due process of law and that Colorado law lacked these heightened procedural guardrails.

The court also could find that Section 3 does not go into force until Congress passes implementing legislation that would spell out the missing necessary procedures, hearings, jury trial rights, and rules of evidence needed to execute Section 3.

In a democracy, it should give all of us pause when a leading presidential candidate is removed from the ballot. This seems to strip voters of the power to determine for themselves who should be president. But just as courts are obligated to enforce other disqualification provisions in the Constitution — for instance, that no one under 35 or who is not a natural born citizen can hold the presidency — the Colorado court had little choice but to enforce the plain disqualification language of Section 3. It speaks well that the majority reached its conclusion only after hesitating to take such a grave step, noting “the magnitude and weight of the questions now before us.”

In its infamous 2000 decision in Bush v. Gore, the Supreme Court did intervene against democracy, by stopping a recount in Florida authorized under state law, thereby effectively declaring George W. Bush president by judicial fiat. It is tempting to think the court would be making a similar anti-democratic mistake if it were to uphold Trump’s disqualification.

But the rule of law is the North Star in a constitutional democracy. On Jan. 6, 2021, a mob violently invaded the US Capitol, urged on by a sitting president who for months before had told big lies to hold onto power and destroy the foundation of a constitutional republic — the peaceful transition of power.

This attempt at mob rule requires the clearest possible reassertion of the rule of law. The Colorado Supreme Court decision does that and no more.

The Supreme Court may soon have before it both this case and Trump’s claim to immunity from federal prosecution for seeking to overturn the 2020 election. One can imagine the court taking the opportunity to rule for Trump in the Colorado case and against him in the immunity case, where he has virtually no legal leg to stand on. At a time when the court is struggling to regain legitimacy, perhaps the court would see a “split” decision as moderation.