Colorado Court Blocks Trump from ’24 Ballot. Now What?

And: What will SCOTUS do next?

By and
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In this emergency pod, Sarah and David discuss the Colorado Supreme Court’s decision to disqualify Donald Trump from the state’s primary and general election ballots. They take listeners through:
—How they speed read court opinions;
—The self-execution of Section 3 of the 14th Amendment;
—The concept of non-justiciability (and how to pronounce it);
—Problems with congressional drafting;
—Debating incitement; and
—What will SCOTUS do?

Show Notes:

–Prof. Will Baude on Section 3, Insurrection, and Trump

-Coup de Target

-Incitement of Insurrection

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Comments (165)
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  1. Sean Smith

    Barr just nailed this: https://www.thefp.com/p/bill-barr-banning-trump-from-the?utm_source=post-email-title&publication_id=260347&post_id=140262537&utm_campaign=email-post-title&isFreemail=false&r=49tvl&utm_medium=email

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    Jeff Walden

    I finally finished reading the whole CO case, so I have actual thoughts now.

    I'm relatively convinced by the majority opinion. Let justice be done, tho the heavens fall, and all that. And as to whether the president is actively contemplated under 14AS3, the point I was most opposed on initially due to the textual analysis of Blackman/Tillman of "officer" in its various constitutional forms -- I think the indications that the public considered the presidency as being counted under it are most informative.

    That said, the dissents quote some of the CO statutory language that gives me pause. Particularly, the clause that says that the CO rules are "intended" to conform to the federal requirements. That sounds an awfully lot like an "informative", rather than a "normative", clause of law to me! In other words, it's saying "this is what we've aimed for"...but it is not saying "this is what we are actually legislating". I would want to read the context a bit more, but for now -- based on the excerpts in the opinion and dissents -- it seems possible to me that while Colorado may have intended the two sync up, in fact they only set it up so the specific CO requirements (and the non-14A requirements in the Constitution) must be enforced. And 14AS3 is just left out.

    I don't get why no dissent observes that that language looks aspirational, not an actual requirement. So I guess I generally agree with the majority, but it looks to me like the state-law issue maybe should go as the dissents put it, tho not precisely for the reasons they say. Yes, the procedure is woefully inadequate for this actual question. But you don't just get to get out of stuff because it's not right -- and it's not clear to me why the immovable/object/irresistible force question should be resolved *in Trump's favor* here, rather than accepting that the fudging the district court did of the timeline is the way to resolve things that least messes with the rules.

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  3. Mitchzavada34

    Off topic but I hear you guys read comments from members. Who would have standing to sue if the Trumpster is re-elected and pardons himself and can it be me? Thanks

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      Jeff Walden

      Seems like anyone subjected to adverse government action, for which the duty for implementing lies with the president, would qualify. The "anyone" would raise an argument that the action was unlawful because it was perpetrated by someone who cannot actually hold the office, having been disqualified by 14AS3, and we'd be off to the races.

      Or possibly you could extend the same to any appointee of his (once he's made some, if any actually were confirmed) who does something? I'm somewhat less sure about this one, tho, because the connection is more attenuated.

      I'm only about 60-70% sure on this argument, tho, so I'd be interested to hear anyone agree or disagree with it.

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  4. Chris Brown

    Hey there! Love the podcast.

    On the Colorado case and the podcast you did and elsewhere, I have seen only passing mention on the issue of both ripeness and the interplay of the 20th amendment but for one WSJ opinion piece. Hoping you all will address this soon. A crazy outcome could be that SCOTUS will punt either on ripeness (not ripe under 14th until Trump were to win at the electoral count) or that the issue already covered by 20th Section 3 and Congress will then be the judge of whether Trump is "qualified" at electoral count - that is, whether he is disqualified by 14th section 3.

    The problem I have with the decision and the discussion is that in the first instance, the 14th amendment says nothing about ballot access at all. Assuming arguendo that the President is covered by Section 3, Section three says only that someone disqualified by the section (an Insurrectionist for short) cannot "be" President. It says nothing about ballots or standing for election. Also Section 3 allows for Congress to vote 2/3 to remove the disability at any time through January 20, 2025 and even thereafter. It seems to me that it can't be that ballot access for being currently disqualified as an Insurrectionist would be treated differently than being under 35 on election day but 35 by inauguration. Just like the passage of time will cure that disqualification, Congress could act at any time to remove the Insurrectionist disability.

    Further, the 20th amendment even provides a mechanism for an Insurrectionist to be elected President but not sworn into office. Section 3 of the 20th says "if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified." That would surely describe Trump if you assume he is currently disqualified by the 14th. I don't see how one can get around that the Constitution itself addresses a President-elect being otherwise unqualified and therefore not sworn-in. As said, Congress can remove the disability either before or after inauguration day. Congress could decide that the people have spoken if he wins and that it is therefore Congress' duty to remove any question of disability.

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  5. Darrellhanson2

    The Chief Justice who Sarah cited on the interpretation of the 14th Amendment was Salmon Chase, not Samuel Chase. Samuel Chase was an associate justice of the Supreme Court from 1796 to 1811, and has the "distinction" of being the only U.S. Supreme Court justice to have been impeached (but was acquitted by the Senate). It is a minor point, but for some reason Salmon Chase's parents gave him a weird name so we might as well use it.

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  6. Vitaly.Furman

    I have a question regarding how Bush v. Gore was decided. I understand that the recount mess in Florida raised serious Equal Protection issues under 14th Amendment. But why not extend the Safe Harbor date till at least a day before the Electoral College vote (that would give the recount 5 additional days). Wikipedia (not the best source of information) says the Court ruled that extending the deadline would violate Florida election law. But as Sarah has just said, Supreme Court does not rule on the issues of state law. I guess the deadline could not be extended because it would violate the Electoral Count Act. I think that the Colorado case can only be decided on grounds that the Colorado Supreme Court did not apply the section of the 14th Amendment correctly; i.e., only Congress can decide that a US officer can be excluded from the Federal ballot?

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    Mick.Staton

    The "self executing" discussion is one I really don't understand. I can see where legislation written by Congress and signed into law by the President may require rules and regulations to be created in order to execute their intent, but we are talking about the Constitution here. Every article of the Constitution is self-executing because it is the literal rulebook we use to not only create, but run our country.

    We did not need enacting legislation to provide for the legislative branch of our government. It is spelled out right there in the Constitution. I do not need enacting legislation to be able to exercise my right of free speech. On the contrary. Court challenges arise when government tries to write a law that infringes on my free speech.

    The idea that anything listed in the Constitution requires subsequent enacting legislation just seems to fly in the face of the purpose of the document itself.

    I also think the argument that Article 3 does not apply to the President as the most ludicrous one there is. The reason they had the President listed and then took him out is NOT because they wanted to bar insurrections from being a Congressman but thought it okey dokey for one to be President. They removed the specific reference to the President because it is just common freakin' sense that the prohibition would include the "office" of the President.

    I also do not buy into the arguments that a court cannot remove someone from the ballot that is disqualified from holding that office. No party has the right to nominate whoever they want to be President. They have to meet the qualifications laid out in the Constitution. The Republican Party cannot nominate a 20 year old non-citizen to be President. The Democrat Party cannot nominate someone who is not a natural born citizen to be President. Nobody would argue that the courts can remove someone from ballot for failing one of those qualifications.

    What we are arguing about right now in my opinion is not whether someone who is an insurrectionist can be barred from the ballot, but whether what Trump did qualifies him as an insurrectionist. I fully believe he incited that mob into committing an insurrectionist act. They were attempting to block the Constitutionally proscribed counting of electoral votes in order to subvert the will of the people and keep Trump in office (and maybe kill some Democrat members of Congress if they were lucky). If that is not an insurrection I don't know that anything could qualify short of an actual successful coup (and don't forget, if you win it is no longer an insurrection, it is a revolution).

    But I don't think that is enough to keep Trump off the ballot. He didn't go to the Capitol. He didn't fight with the cops. He wasn't directing actions of people at the Capitol. Like a malevolent spoiled brat he wound up the crowd like a top and sent them spinning out into the streets, not exactly certain what they would do or what destruction they would cause, and not really caring one way or the other.

    This country needs to be done with Trump, but the only way they can happen is if he is soundly defeated in 2024. Trump's victim status is his superpower and keeping him off the ballot only makes him stronger. The story of how he was so awesome they had to steal an election from him and block him from winning it back will live on forever if this is allowed to stand. If I want to have any hope at all of rescuing my party from the clutches of Trump he has to go down in November, 2024 and he has to go down HARD.

    That means he needs to be on the ballot.

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    PaulH

    I lean towards the interpretation that Trump is covered by Section 3; I don't think that inferences (inconsistent ones at that) drawn from other parts of the Constitution can overcame the plain words of the amendment. There is no doubt that the Presidency is an "office" (read section 1) and in ordinary usage that makes the holder an officer. I also see no reason why Section 3 shouldn't be treated as self-executing (i.e. judicially enforceable) like the other provisions.

    But if the Supreme Court follows that logic, it is left with a conundrum. How does it determine if Trump has engaged in an insurrection? It certainly is not going to defer to the conclusions of a state district court after slap-dash proceedings. But also it doesn't have a mechanism (that I am aware of) to act as a trier of fact itself. Nor is there somewhere it could obviously send the decision to -- other than back to that same obscure state district court -- not a likely venue for such a momentous decision.

    I think the SC could conclude that 1) if Trump had been convicted/acquitted under Section2383 then that would suffice -- but he hasn't; or 2) If Congress had created some mechanism to determine whether or not Trump had engaged in an insurrection then that would suffice -- but it hasn't. As such, the SC overrules the CO SC and the issue is settled for the 2024 election. This approach pulls in some concepts of non-justiciability without making Section 3 a dead letter forever.

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      Dougherbert

      The Supreme Court does engage in fact finding in some cases within its original jurisdiction, disputes between states and disputes involving ambassadors. I think these are mostly water rights cases and the Court appoints a special master to make findings of fact.

      I don't think they could (or would) make findings of fact in a matter of appellate jurisdiction.

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      1. Paul Piazza

        True, but I think people forget they could apply a stricter level of factual review than in the ordinary case. The Court may say in their opinion that they're engaging in ordinary, deferential factual review, but as a practical matter they could apply something more akin to de novo review because the facts are so consequential and involve mixed qs of fact and constitutional law (aka the definition of constitutional "insurrection"). They do this with fact-finding in the First Amendment context. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984).

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    Jessebrent

    Shummer's remarks about Kavenaugh were made to normal people. The same about similar remarks Trump made years ago. On Jan 6 Trump was talking to an armed crowd who were there to interrupt Certification. These situations are not similar, are they?

    Can't there be a more general legal definition of "insurrection" as it applies to Constitutional Law, and a more specific definition in Criminal Law?

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  10. Chris Newman

    1. If we're just looking at the surface value of the words Trump used on 1/6, I agree that it seems to fall short of Brandenburg. But it also seems clear that one has to apply the concepts of intent and likelihood in full context. The question isn't, "would we ordinarily assume that a speech using similar rhetoric would be likely to lead to imminent illegal activity," but rather, "under *those* circumstances (including the groundwork already laid), would TRUMP's saying *those things to those people* be foreseeably likely to result in violence." And yes, the fact that it actually did, while not dispositive, is surely probative evidence. The Court has said several times something like "well, nothing actually happened; maybe it would be different if something had." Think of Claiborne Hardware, where the court treats "If we catch you going into any of those racist stores, we'll break your damn neck" as mere hyperbole, in part because it didn't happen. So it's not about how violent does the language sound literally on its face, it's about what people in full context would reasonably understand and expect. It seems to me that by the same token, language that stays strategically ambiguous when it comes to illegality or violence (e.g."fight") can still be legal incitement if the circumstances are such that the speaker knows and intends to bring about a violent result.

    2. I'm not sure Brandenburg is even the right rubric here, though. That's just the Court's judicial definition of a particular category of unprotected speech, but it's not the only one. And clearly the 14th amendment (which modifies the 1st) provides that any actions (including speech) that amount to engaging in insurrection are not protected speech, at least insofar as the specific penalty of being disqualified is concerned. Trump would arguably have "engaged in" insurrection even if he played no direct role in starting the violence, to the extent that he connived at its continuation and attempted to actively use it as leverage to achieve his goal of preventing certification of the election. If his continued tweets at and about Pence constituted engagement in insurrection in this sense, then they are unprotected speech for the present purpose even if they wouldn't rise to the level of true threats or incitement taken in isolation.

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