Colorado Supreme Court erred and failed to uphold Trump’s due process
most have heard that Colorado’s Supreme Court, in epochmaking case Anderson v. Griswold, barred former President Trump from appearing on the ballot in 2024.
Michigan’s Supreme Court also scrutinized Trump’s ballot dispute but diverged dramatically from Colorado’s ruling.
On what grounds was Trump barred in Colorado? Section 3 of the Fourteenth Amendment succinctly proffers, “(n)o person shall…hold any office ... who ... previously taken an oath ... as an officer of the United States ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”
There’s a lot going on in the Fourteenth Amendment that requires nuanced dissection. Myriad legal questions arise in Trump’s case, some of which the Colorado court grapples with, some they unceremoniously shelve; a few such matters include First Amendment rights as well as state versus federal sovereignty. These are certainly important inquiries, however, most poignant is the failure of the Colorado Court to adequately determine due process.
Here’s how the Constitution defines ‘due process’
Due process is scribed in the Bill of Rights, under the Fifth Amendment, and ostensibly contends that no individual may be deprived of life, liberty, or property without proper legal proceedings, i.e., what we generally understand as the legal procedures to deprive someone of a right or privilege – things like a trial, the burden of proof required to convict someone, and limitations for carrying out such a process.
For example, to be convicted of second-degree murder, prosecutors must demonstrate, beyond a reasonable doubt, that you did in fact murder someone and did so with a wanton disregard for human life (your activities were so egregious that the behavior rose above mere recklessness).
Prosecutors might try and submit video footage, eyewitness accounts,
fingerprints, or a weapon, as proof to secure a guilty verdict. That proof would be presented to a jury.
Moreover, that proof is subject to strict limitations to protect those accused of a crime and promote a fair trial. Further, prosecutors can’t throw any curveballs. They must turn over all evidence they plan to use against you, all evidence that might exonerate you, and anything in between – not that these rules are always executed perfectly, yet their aspiration is paramount. All of this foments due process.
U S Supreme Court has precedent on upholding due process rights
In an old case right after the Civil War, Chief Justice Salmon Chase examined the Fourteenth Amendment, and delved into due process. Justice Chase reasoned: “It is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, or property, without due process of law … are inconsistent in their spirit and general purpose with a provision which … without trial, deprives a whole class of persons of offices.”
Chase laments that Section 3 does not provide adequate due process, and it is for Congress to determine what that due process ought to look like. Michigan’s Supreme Court found Jusundoubtedly,
tice Chase’s holding compelling and ultimately ruled that Congress should be responsible for the process entirely.
Without proper guidance from Congress, a court must rigorously apply due process before depriving an individual of a right.
Colorado did not hold a jury trial to determine if Trump was an insurrectionist, nor provide the evidence to be used against him. Colorado did not adhere to stringent rules of evidence or procedures. And the burden of proof used against Trump was not beyond a reasonable doubt. Rules matter. Due process matters.
It may appear that the fabric of society is unfurling around us, nevertheless, I implore folks to adhere to our values. The Constitution is only words on a page. But those words have been entrusted with meaning.
Each of us are endowed with inalienable constitutional rights, no matter how tarnished, how malevolent, or how questionable we might be. If we forgo things like due process, everything crumbles. Perhaps even Waffle House cannot withstand such a calamity.
Brian Daniel Mounce is a federal public defender in the Western District of Tennessee, a professor at Christian Brothers University, and the delegate for Western Tennessee for the Tennessee Bar Association Young Lawyers Division (YLD) board.