“The case turns on a previously obscure provision of the 14th Amendment, which provides that anyone who previously held a high office requiring them to swear an oath supporting the Constitution is forbidden from holding a similar office if they “have engaged in insurrection or rebellion” against that Constitution.
The Colorado Supreme Court concluded that Trump engaged in an “insurrection” because he spent months falsely claiming that the 2020 election was “rigged.” He encouraged his supporters to “fight,” suggesting that Democrats would “fight to the death” if the shoe were on the other foot. And Trump named then-Vice President Mike Pence as someone who should be targeted by the pro-Trump mob that invaded the Capitol.But there is precious little case law laying out what this provision of the Constitution means, or defining key terms like “insurrection” or what it means to “engage in” such an attack on the United States. Since the period immediately following the Civil War, there has not been much litigation involving disloyal public officials who joined an insurrection against the very system of government they swore to defend. So courts asked to interpret the 14th Amendment’s Insurrection Clause — including the Supreme Court — must do so without the ordinary guideposts judges look to when reading the Constitution.”
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“In addition to their legal arguments, Colorado Republicans also make a political argument for keeping Trump on the ballot — removing him would deny voters “the ability to choose their Chief Executive through the electoral process.” This purely political argument has garnered sympathy from many observers, including outlets such as the New York Times.
This final argument, if taken seriously by a majority of the justices, could render the 14th Amendment’s Insurrection Clause a dead letter — because it would prevent it from operating in the one circumstance when such a constitutional provision is needed.”
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“allowing insurrectionists with significant public support to stand for office would defeat the whole point of the Constitution’s Insurrection Clause.
Unpopular insurrectionists will never get elected to office in the first place because they are unpopular.”
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“The Colorado GOP does raise one fairly strong legal argument that supports deferring the question of whether Trump should be removed from the 2024 ballot until, at least, after he is convicted of a crime or otherwise determined to have engaged in insurrection by a federal trial court.
In Ownbey v. Morgan (1921), a case that admittedly had nothing to do with the Insurrection Clause, the Supreme Court said that “it cannot rightly be said that the Fourteenth Amendment furnishes a universal and self-executing remedy.” This means that private litigants ordinarily cannot sue to enforce this amendment, absent some state or federal statute authorizing such lawsuits.”
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“the Colorado Supreme Court determined that a state statute permitting voters to challenge candidates’ eligibility to run for office does permit suits seeking to enforce the Insurrection Clause, and states often have the power to pass laws permitting their own courts to enforce the Constitution.”
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“as the Colorado GOP warns the justices, the Colorado Supreme Court’s decision also means that “individual litigants, state courts, and secretaries of state in all 50 states plus the District of Columbia have authority” to determine which candidates must be removed from the ballot for violating the 14th Amendment. And, while there is no reason to believe that Colorado’s judges acted in bad faith when they removed Trump, it’s not hard to imagine what could happen in states with less responsible judges if the Colorado decision is allowed to stand.
Imagine, for example, that the Florida Supreme Court — which is made up entirely of Republican appointees, most of whom were appointed by far-right Gov. Ron DeSantis — were to invent some completely fabricated reason to accuse President Joe Biden of engaging in an insurrection, and then imagine that they invoked this pretextual reason to remove Biden from the 2024 ballot.”
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“Trump wasn’t exactly denied a trial altogether before he was removed from Colorado’s ballot. But, as Justice Carlos Samour wrote in a dissenting opinion, the process Colorado’s courts used to determine that Trump engaged in an insurrection was unusually truncated. It lacked “basic discovery, the ability to subpoena documents and compel witnesses, [and] workable timeframes to adequately investigate and develop defenses.” And, as Justice Maria Berkenkotter wrote in her dissent, the Colorado courts relied on a process that “up until now has been limited to challenges involving relatively straightforward issues, like whether a candidate meets a residency requirement for a school board election.”
In any event, the Colorado GOP takes its argument that the 14th Amendment is not self-executing too far, suggesting that Trump cannot be disqualified unless he is convicted in a federal court specifically of violating a criminal statute that uses the magic word “insurrection.” But they raise valid points against allowing each state to have the final word on who can run for president, and against allowing Trump to be removed based on the limited process he received in the Colorado system.”