[Make sure to read Joseph Klein’s contributions in Jamie Glazov’s new book: Barack Obama’s True Legacy: How He Transformed America.]
The Colorado Supreme Court took it upon itself to bar former President Donald Trump from appearing on the state’s ballot in the 2024 presidential primary election. The Colorado Supreme Court, by a 4-3 vote, based its assault upon the fundamental democratic right of eligible Coloradans to vote for the candidate of their choice on Section 3 of the U.S. Constitution’s 14th Amendment. Under Section 3, a person is disqualified from holding public office who violated his or her oath as an “officer” of the United States to support the Constitution by engaging “in insurrection or rebellion against the same…”
The Colorado Supreme Court held that Mr. Trump was disqualified from holding the office of president of the United States because he allegedly engaged in what Colorado’s highest court concluded was an “insurrection.” The court below had made the same finding of an “insurrection,” using as evidence the politically biased congressional report drafted by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. However, the lower court judge had held nevertheless that Section 3 did not apply to Mr. Trump as president of the United States, reasoning that a U.S. president was not technically within the category of “officer” covered by Section 3.
The Colorado Supreme Court reversed that specific portion of the lower court’s opinion and went on to order that Mr. Trump was disqualified from appearing on Colorado’s 2024 presidential primary ballot. Recognizing the inevitability of an appeal of its decision, the Colorado Supreme Court stayed its order until at least January 4, 2024, pending possible U.S. Supreme Court review.
The Colorado Supreme Court majority handed down a decision worthy of a banana republic. The U.S. Supreme Court must promptly accept an appeal of, and firmly strike down, this outrageous decision by four liberal state judges who nullified the right of Trump supporters to vote for him in Colorado’s 2024 Republican presidential primary. If left standing, the decision could deprive more than a million Coloradans who voted for Trump against Biden in the 2020 general election to vote for him again in 2024.
The Democrat-controlled House of Representatives impeached Mr. Trump in 2021 for allegedly inciting an insurrection on January 6th at the U.S. Capitol, which the House concluded was among the Constitution’s impeachable “high Crimes and Misdemeanors.” The House impeachment resolution specifically referred to Section 3 of the 14th Amendment, which it said “prohibits any person who has ‘engaged in insurrection or rebellion against’ the United States from ‘hold[ing] any office … under the United States.’”
The U.S. Senate is the legislative body duly authorized by the U.S. Constitution to determine whether an individual impeached by the House should be convicted. Article I, Section 3, Clause 7 of the Constitution provides:
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” (Emphasis added)
The Senate acquitted Mr. Trump of the insurrection impeachment charge. Since he left office, Mr. Trump has not been indicted, much less convicted, under the federal Insurrection Act, which also contains a disqualification provision.
However, none of this meant anything to the Colorado Supreme Court majority. These judges went full steam ahead and decided, based on a shoddy record, that Mr. Trump had incited an insurrection on January 6th.
One of the three dissenters wrote that the case against Mr. Trump should have been dismissed because it lacked any “determination from a proceeding (e.g., a prosecution for an insurrection-related offense) with more rigorous procedures to ensure adequate due process.” There was no due process in the Colorado judiciary’s makeshift proceedings in this case. As this dissenting judge noted in his opinion, the Colorado trial court proceedings “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.”
Fifty states going in multiple directions when deciding whether Section 3’s disqualification provision applies to a presidential candidate will inevitably result in a patchwork of conflicting decisions on whether that candidate engaged in an “insurrection.” The problem of how to interpret and apply an ambiguous provision in the U.S. Constitution that could end up depriving a U.S. citizen of the right to run for the office of president of the United States, and depriving voters of the right to vote for that candidate, requires a uniform nationwide approach.
Congress passed the Insurrection Act (18 U.S.C. § 2383) precisely for this purpose, as authorized by Section 5 of the 14th Amendment. Section 5 states that “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
The Insurrection Act provides that “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” (Emphasis added)
Congress has determined the process by which an insurrection charge should be handled to ensure that the accused individual is accorded due process before being convicted and deprived of being able to hold any U.S. public office. Again, the Colorado Supreme Court’s 132-page majority opinion skipped over the fact that Donald Trump has not been indicted, much less convicted, for violating the Insurrection Act.
The state court judges, state electors, and state election officials who have nevertheless determined that Mr. Trump engaged in an insurrection and must therefore be removed from the 2024 presidential primary election ballot have grossly exceeded their constitutional authority.
The Colorado Supreme Court majority also ran rough shod over Donald Trump’s First Amendment rights. Mr. Trump had a First Amendment right to assemble his supporters for a peaceful rally on January 6th and speak to them about his belief that the 2020 election was stolen, whether that was true or not. Mr. Trump also had a First Amendment right to ask his supporters to petition the government for redress. Mr. Trump specifically told his supporters that “everyone here will soon be marching to the Capitol building to peacefully and patriotically make your voices heard.” (Emphasis added)
The four Coloradan Democrat judges in the majority tried to minimize Mr. Trump’s explicit call for a peaceful march to the Capitol by twisting other words he used in his speech, such as “fight like hell,” to sound like something sinister. The judges also brushed aside the relevance of a U.S. Supreme Court precedent that set forth a narrow exception to First Amendment protection. This exception involves words, the U.S. Supreme Court held, that are “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.”
Encouraging supporters to march “peacefully and patriotically” to make their voices heard is the opposite of fiery words intended to incite a mob to commit imminent lawless action. There was no violence at the site of Mr. Trump’s speech. Mr. Trump did not march with his supporters to the Capitol and had no part in directing the violence by a relatively small number of lawbreakers that ensued there.
Runaway activist judges like the four who arbitrarily decided that Donald Trump’s name should not appear on the 2024 Colorado presidential primary ballot, and that not even write-in votes for him should count, must be reined in. Otherwise, we will no longer be living in a constitutional republic governed by the rule of law. The United States Supreme Court must fix this abuse of the 14th Amendment before it spreads like wildfire to many other states.