Colorado Kicks Trump Off the Ballot

Happy Thursday! Holiday cheer comes in many forms this time of year: quality time with family, thoughtful gifts, delicious holiday treats, and $1 billion in back taxes penalty waivers from the IRS. 

Quick Hits: Today’s Top Stories

• Hamas leaders reportedly rejected an offer from Israel on Wednesday to implement a weeklong pause in fighting in exchange for the release of 40 of the estimated 129 hostages still in Hamas captivity, according to Egyptian officials. The terror group has said publicly that it will neither consider temporary ceasefires nor negotiate further hostage releases until Israel ends its military operations in the Gaza Strip completely. Ismail Haniyeh, Hamas’ political leader who typically resides in Qatar, traveled to Cairo on Wednesday for truce talks with Egyptian leaders—his last visit to Egypt in November precipitated the previous pause in fighting and hostage releases. President Joe Biden said yesterday a new deal hasn’t been reached yet, telling reporters, “There’s no expectation at this point, but we are pushing.”
• The Biden administration confirmed on Wednesday the release of 10 American prisoners held in Venezuela (including six designated by the State Department as wrongfully detained) in exchange for Alex Saab—a Colombian businessman accused of money laundering and profiting off food imports while Venezulans starved, and a close ally of Venezuelan President Nicolás Maduro. As part of the deal, Venezuela also transferred Leonard Glenn Francis—who goes by the moniker Fat Leonard and was involved in one of the largest bribery cases in U.S. military history—to U.S. custody. Francis escaped house arrest in California in September 2022, and was detained in Venezuela. President Joe Biden said in a statement that Francis has been returned to the United States, where he will “face justice for crimes he committed against the U.S. Government and the American people.”
• After three years of drafting and negotiations, the European Union (EU) reached a major deal on Wednesday that would reform the bloc’s immigration and asylum policies. The breakthrough, which is preliminary and still needs to be formally ratified, would tighten rules around asylum—such as stipulating eligibility assessments will take place at borders to facilitate faster deportations of ineligible migrants—and establish clear frameworks about burden sharing among EU members when dealing with large waves of migrants. “The new rules, once adopted, will make the European asylum system more effective and will increase the solidarity between member states by enabling to lighten the load on those member states where most migrants arrive,” the European Commission said in a statement. The changes must be approved by each of the 27 member nations and ratified by the European Parliament. 
• The National Association of Realtors reported Wednesday that the median existing-home sales price in the U.S. hit $387,600 in November—up 4 percent year-over-year and the fifth consecutive month of year-over-year price increases. Sales of previously owned homes increased 0.8 percent from October, ending 5 months of decline, but were still down 7.3 percent year-over-year. 
• The Census Bureau released its annual population estimates on Tuesday, showing that American population growth is returning to pre-pandemic levels. The population increased by 0.5 percent in 2023—up 1.6 million people to 334,914,895—with the South accounting for 87 percent of the growth. Congressional reapportionment won’t happen again until after 2030, but if the trends hold steady, political power in Congress could become further concentrated in the South—the country’s most populous region.

An End-of-Year Constitutional Crisis

In a 4-3 decision released Tuesday night, the Colorado Supreme Court ruled in Anderson v. Griswold that former President Donald Trump’s efforts to overturn the 2020 election and conduct on January 6, 2021, render him disqualified from returning to office under Section 3 of the 14th Amendment.

Nothing like a little constitutional crisis to end the year.

The Colorado decision opened the door to the judicial branch deciding what candidates will be allowed to appear on the November 2024 ballot, setting up the most consequential election-related legal dispute since Bush v. Gore ended the recount process in Florida more than two decades ago. While the ruling immediately evoked a variety of strong reactions from legal scholars and politicians alike, the one thing virtually everyone agrees on is that the U.S. Supreme Court needs to settle the question—and quickly.

The 14th Amendment, adopted after the Civil War, guarantees equal protection under the law—and Section 3, upon which this case hinges, details what disqualifies an individual from holding office:

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 Colorado Supreme Court’s decision followed a Colorado district court’s decision which stated that, while Trump did engage in an insurrection on January 6, 2021, he was not subject to Section 3 of the 14th Amendment. On yesterday’s episode of Advisory Opinions, Sarah Isgur broke down the major points decided by the Colorado Supreme Court:

Number one: The election code allows the electors to challenge President Trump’s status as a qualified candidate based on Section 3. This is more the state election code argument. Indeed, the election code provides the electors their only viable means of litigating whether President Trump is disqualified from holding office under Section 3. 

Two: Congress does not need to pass implementing legislation for Section 3’s disqualification provision to attach, and Section 3 is, in that sense, self-executing. 

Three: Judicial review of President Trump’s eligibility for office under Section 3 is not precluded by the political question doctrine. 

Four: Section 3 encompasses the office of the presidency and someone who has taken an oath as president. On this point, the district court committed reversible error. 

Next, the district court did not abuse its discretion in admitting portions of Congress’ January 6 report into evidence at trial. 

Next, the district court did not err in concluding that the events at the U.S. Capitol on January 6 constituted an “insurrection.” 

Next, the district court did not err in concluding that President Trump engaged in that insurrection through his personal actions. 

And finally, President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6 was not protected by the First Amendment.

The court, made up of seven judges nominated by Democratic governors, summed up their majority opinion thusly: “A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”

Colorado was not the first state to consider whether or not Trump was eligible to run for president under the 14th Amendment. Courts in at least sixteen states are actively considering the question—and Georgia, North Carolina, and Minnesota have each ruled that the 14th Amendment does not bar Trump from running for president. But that doesn’t mean the ramifications of Colorado’s decision this week aren’t profound. “It’s worth remembering that this is a little like nationwide injunctions,” Sarah said on Advisory Opinions. “Similar to a nationwide injunction, you can lose in 300 district courts, but all you have to do is win one. And it feels a lot like what’s happened here. … Court after court saw this and was like, ‘No.’ … They all had kind of different reasons that Section 3 of the 14th Amendment was not going to prohibit a person from getting on the ballot this time. And all it takes is one. And now we’re off to this constitutional crisis.”

Part of this state-by-state disagreement stems from the question of exactly who Section 3 applies to: While the 14th Amendment makes clear that a person who has taken an oath to uphold the constitution cannot participate in an insurrection and continue to “hold any office, civil or military, under the United States, or under any State,” there are legitimate questions about whether January 6 meets the legal definition of an “insurrection”—and whether that clause pertains to the president at all.

The Colorado Supreme Court’s majority opinion took a side in those debates. “President Trump asks us to hold that Section 3 disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath breakers from virtually every office, both state and federal, except the highest one in the land,” the court wrote in its decision. “Both results are inconsistent with the plain language and history of Section 3.”

The Colorado Supreme Court’s ruling won’t immediately go into effect—in fact, the court granted a stay on its enforcement until January 4, specifically to give Trump time to appeal the decision and the U.S. Supreme Court time to decide whether to agree to hear the case. “If review is sought in the Supreme Court before the stay expires on January 4, 2024,” the decision reads, “then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court.” This will presumably also pause deliberations in other states over the same questions.

The former president himself was, as one might imagine, less than pleased with the outcome in Colorado. After reposting a series of clips of allies defending him on Fox News, he posted six words of his own on Truth Social: “WHAT A SHAME FOR OUR COUNTRY!!!” 

A few minutes later, he added another message. “BIDEN SHOULD DROP ALL OF THESE FAKE POLITICAL INDICTMENTS AGAINST ME, BOTH CRIMINAL & CIVIL,” he wrote, seemingly conflating the decision in Colorado with the more than 90 criminal charges he’s facing in several jurisdictions across the country and an ongoing civil trial in New York. “EVERY CASE I AM FIGHTING IS THE WORK OF THE DOJ & WHITE HOUSE. NO SUCH THING HAS EVER HAPPENED IN OUR COUNTRY BEFORE. BANANA REPUBLIC??? ELECTION INTERFERENCE!!!”

A Trump campaign spokesman also suggested that there was a conspiracy afoot in the Colorado decision. “Democrat Party leaders are in a state of paranoia over the growing, dominant lead President Trump has amassed in the polls,” Steven Cheung said. “They have lost faith in the failed Biden presidency and are now doing everything they can to stop the American voters from throwing them out of office next November.” Trump has promised to appeal the ruling. 

Some of Trump’s staunchest allies in Congress were quick to agree that the Colorado decision was evidence of an ongoing weaponization of the justice system against their preferred candidate. “Democrats are trying to imprison their chief political opponent and have now apparently succeeded at removing him from the ballot,” said Rep. Matt Gaetz of Florida. “This is what dictators do.” Rep. Nancy Mace of South Carolina concurred. “The Colorado courts weaponizing the law against Donald Trump should alarm everyone,” she tweeted. “Trump haters are abusing the Constitution and the rule of law to attempt to keep him out of office (again).”

House Speaker Mike Johnson of Louisiana was once perfectly content to use the courts to overrule a democratic process, spearheading an effort in late 2020 to collect lawmakers’ signatures in support of a lawsuit in Texas challenging the results of the that year’s election—which, if successful, would have voided millions of votes in four other states. Tuesday, though, Johnson—who formally endorsed Trump’s reelection campaign last month—was impugning the decision in Colorado that, in his view, would short-circuit the democratic process. “Today’s ruling attempting to disqualify President Trump from the Colorado ballot is nothing but a thinly veiled partisan attack,” he said. “Regardless of political affiliation, every citizen registered to vote should not be denied the right to support our former president and the individual who is the leader in every poll of the Republican primary. We trust the U.S. Supreme Court will set aside this reckless decision and let the American people decide the next President of the United States.”

Although the ruling would, on paper at least, boost their own slim presidential prospects, Trump’s GOP primary opponents were also critical of the decision in Colorado. Biotech entrepreneur Vivek Ramaswamy predictably carved out the most pro-Trump position, vowing to remove himself from the ballot in Colorado if Trump were barred and calling on his primary opponents to do the same (which they’ve either explicitly or tacitly declined to do).

Former U.N. Ambassador Nikki Haley and former New Jersey Gov. Chris Christie took a slightly softer stance, arguing that, while they don’t believe Trump should be president, it wasn’t the court’s decision to make. “I will tell you that I don’t think Donald Trump needs to be president,” Haley said after a campaign event in Iowa on Tuesday. “I think I need to be president. I think that’s good for the country. But I will beat him fair and square. We don’t need to have judges making these decisions, we need voters to make these decisions.” Christie shared a similar sentiment at a campaign stop in New Hampshire. 

Florida Gov. Ron DeSantis’ response focused on what he viewed as the likely downstream effects of the Colorado decision, highlighting the Republican primary electorate’s tendency to rally around their standard-bearer whenever he’s in legal jeopardy. “What the left in the media and the Democrats are doing, they’re doing all this stuff to basically solidify support in the primary for [Trump], get him into the general [election], and the whole general election is going to be all this legal stuff,” he said at a campaign event. 

“What they don’t want is to have somebody like me who will make the election, not about all those other issues, but it’ll make the election about the failures of Biden, the failures of the left, and how we’re going to be able to turn the country around,” he added later. “If that’s how the election’s framed, we will win. But they are setting this stuff up.” 

For his part, President Biden first declined to comment on the ruling Wednesday before saying—in response to a question about whether Trump was an insurrectionist—that that was “self-evident.” He maintained, however, that it was up to the court whether the 14th Amendment should apply. 

Even if one doesn’t subscribe to the idea of a vast left-wing conspiracy to keep Trump either off or on the ballot, plenty of observers on the right and the left expressed concern about the ruling’s effect on the body politic. Conservative columnist and frequent Trump critic Megan McArdle, for example, argued it would reinforce skepticism about the democratic process. “Using procedural rules to alter the outcome of the 2024 election by keeping a major party nominee off the ballot in one or more blue states does not solve the political problem of Trump’s attacks on the legitimacy of U.S. elections,” she wrote. “It exacerbates them by staging your own attack.”

Jonathan Chait, a liberal writer for New York magazine, similarly warned that a failure to overturn the ruling would undermine American voters’ faith in democratic institutions. “To deny the voters the chance to elect the candidate of their choice is a Rubicon-crossing event for the judiciary,” he wrote. “It would be seen forever by tens of millions of Americans as a negation of democracy.” 

In the latest episode of Advisory Opinions, David French points to the anti-democratic nature of the 14th Amendment as a feature, not a bug. “There’s an enormous amount of argument online about this [decision being] ultimately anti-democratic,” he said. “Yes, it is. Guess what? It’s an anti-democratic section of the amendment. If they trusted the democratic process so that no insurrectionists could be elected, they wouldn’t have this in there. … This is a constitutional principle that we do not want our republic to elect insurrectionaries.” 

But Noah Rothman of National Review argued overturning the ruling likely wouldn’t be enough to undo the damage it has already wrought on the system simply by being introduced into the political bloodstream. “When the Supreme Court overturns Colorado’s verdict, it will hand Trump the most indisputable evidence in favor of a claim he and his supporters have long argued,” he wrote. “It will confirm that Trump was the victim of political persecution. Americans of good faith who have argued (myself included) that Trump brought his legal troubles down upon himself will have to concede at least some of that premise to the former president’s defenders.”

The Supreme Court has until January 4 to decide what to do with the Anderson v. Griswold case—an action French warns could reverberate for years to come. “This would be one of the most, not just the most consequential, but in more ways, more immediately explosive than Brown v. Board,” he said on Advisory Opinions. “Not because of the legal principles involved, but because of who it’s applying to and the nature of the movement that he’s built, which is, quite frankly, insurrectionary.”

Worth Your Time 

• Writing for Law and Liberty, Todd Breyfogle—the seminars director at the Aspen Institute—reviews Paula Marantz Cohen’s latest book Talking Cure, which highlights the importance of rich conversation for our civic and moral health. “In his essay ‘Of Essay-Writing,’ David Hume divides the world into two kinds of people: the learned and the conversible,” Breyfogle wrote. “The problem, Hume continues, is that the learned and the conversible have become separated, and this separation has had ‘a very bad influence both on books and company.’ … Hume seems to capture something of our current predicament—academic discourse has become acutely arcane; common conversation has been reduced to chatter. Hume’s argument is neither nostalgic nor pretentious. Our thought and speech are impoverished because we have not attended to the ‘Balance of Trade’ between the learned and conversible. Common speech needs substantive things to talk about; learned speech should be more connected to the arts of living.” Cohen, in her book, argues that conversation shouldn’t just be simple discussions or exchanges about trivial topics. “She takes the phrase ‘Talking Cure’ from Freud, not in a psychoanalytic sense, but more in concert with Aristotle’s recognition that speech is what makes us most human,” Breyfogle wrote. “Civilizing speech is not chatter. What makes us civil are not mere utterances, but common deliberation about what is important to us as moral beings—halting attempts to navigate and re-navigate our differences about how we ought to live.”

Presented Without Comment

NBC News: Xi [Jinping] Warned [Joe] Biden During Summit That Beijing Will Reunify Taiwan With China

“Xi told Biden in a group meeting attended by a dozen American and Chinese officials that China’s preference is to take Taiwan peacefully, not by force, the officials said.”

Also Presented Without Comment

Texas Lt. Gov. Dan Patrick: “Seeing what happened in Colorado tonight, Laura, makes me think—except we believe in democracy in Texas—maybe we should take Joe Biden off the ballot in Texas for allowing 8 million people to cross the border since he’s been president.”

Toeing the Company Line

• In the newsletters: The Dispatch Politics crew covered MAGAworld’s growing enmity toward Nikki Haley, Jonah argued we can’t be blasé about Trump’s increasingly authoritarian bent, and Nick wrote about (🔒) the Colorado Supreme Court’s “noble and silly” decision.
• On the podcasts: Sarah and David unpack the Colorado Supreme Court’s decision in an emergency edition of Advisory Opinions. 
• On the site today: John McCormack reports on the status of congressional efforts to reach a bipartisan deal on border security and Ukraine aid, while Jason Blessing details the threat of Iranian cyberattacks on Israel.

Let Us Know

Reading Section 3 of the 14th Amendment, do you think Donald Trump’s conduct following the 2020 election meets the bar for disqualification?