A Deep Dive into the Colorado Supreme Court Decision to Not Allow Donald J. Trump on the Republican Primary Ballot – “Justice Is a Process”

Justice is a Process
by Publius

After too many decades in the legal profession, I’ve come to believe that justice is a process, not an outcome.  If outcomes were fixed, there would be no need to go court to for resolution of legal questions.  You would hope that the process is fair, that the rules are fixed and applied uniformly, and that the outcome is based on the evidence and the objective application of the law to the facts in your particular case.  If all that is so, you may still be disappointed with the outcome.

The Colorado Supreme Court in Anderson v. Griswold determined, by a 4-3 margin, that former President Trump is disqualified under the 14th Amendment, Section 3 (“14(3)” herein) of the U.S. Constitution from being a candidate on the Colorado Republican primary ballot because he “engaged” in an “insurrection” on Jan. 6, 2021 after taking an oath to support the U.S. Constitution.  The 213 page opinion can be read here: 23SA300.pdf (state.co.us).  This is an attempt to explain some of the legal arguments involved.

14(3) provides, in part,: “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 an officer of the United States . . . 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 highlighted terms are essential to the decision.

The suit was brought by Colorado voters against the Secretary of State; the Republican party and Trump (“DJT”) intervened.  In addition, 15 lawyers represented “Amici” or friends of the court and filed briefs.  These Amici included law professors, state Republican parties, other Secretaries of State, and 19 individual states.  The case was well briefed.

The trial court decided by clear and convincing evidence that DJT “engaged in insurrection,” and also found that 14(3) is “self-executing,” meaning that it does not require any separate legislation to enforce it.  “Clear and convincing” generally means that the proof presented was “highly probable.”  This burden is higher than a “preponderance” – more likely than not (sometimes thought of as at least 51% likely), but lower than the “beyond a reasonable doubt” standard required in criminal cases.

The trial court found that 14(3) does not apply to DJT.  I have not read it, but it is possible that the court found that the office of President was not one of the enumerated offices in 14(3) that an insurrectionist may not hold.  Because it was left out, the inference may be that the omission was intentional.  The Latin phrase is exclusio unius exclusio alterius: the express mention of some specified offices necessarily excludes others not mentioned.  The Colorado Supreme Court held that the trial court was wrong in finding that 14(3) does not apply to DJT.

The Colorado Supreme Court also held that DJT’s speech on Jan. 6 was not protected by the First Amendment and that its review is not barred by the “political questions” doctrine, that some disputes are better left to the Congress or the voters.  For example, a Minnesota Supreme Court Justice asked during argument on a similar case: assuming we have legal authority to keep DJT off the ballot, “should we?”  The Minnesota court rejected the challenge on state statutory grounds.

The Colorado Court’s review of the evidence included that DJT told the crowd on Jan. 6 to “walk down to the Capitol [and] . . . fight like hell.”

Generally, the most interesting challenges during my legal career have involved interpreting the meaning of ambiguous statutory language.  Interpreting untested Constitutional language is far more fraught with uncertainty.  The post-Civil War Reconstruction Amendments (13, 14, and 15) essentially reformed the relationship between the states and the federal government.

Southern states believed that they could “nullify” federal laws.  The Reconstruction Amendments reassert the supremacy of federal law and sought to exclude rebel leaders from returning to power in the South.  The 13th abolished slavery and involuntary servitude, the 15th assures the right to vote is not conditioned on race or prior slave status, and the 14th (separate from 14(3)) provides for equal apportionment, “due process of law,” and equal protection of the laws.

The Court held that the Colorado statute “provides sufficient due process” to decide whether a candidate is disqualified from office under 14(3).  The Court then explained the process of filing for office, and for primary election candidate challenges.  The Colorado process for deciding such challenges is an expedited one given the exigencies of candidate filing deadlines.  The Constitution delegates to the states the authority to determine the time, place, and manner of elections in each state.

The Court cited the Hassan case, where current Justice Gorsuch, then on the 10th Circuit, wrote that a naturalized citizen was disqualified from running for President because the Constitution says “natural born.”  A state has a legitimate interest in protecting the integrity of its political process, Gorsuch wrote.  The Colorado Court determined that “qualified” includes or imports federal constitutional qualifications under 14(3).

The Court’s holding (at p. 44-49) that Colorado’s expedited challenge procedure provides sufficient due process will be the crux of the Supreme Court’s review of the case, I believe.  The Court held that the trial court gave DJT more time — and therefore more process — than required by the statute.  Although some procedures were absent (discovery, subpoena power, depositions of experts), the trial court ruled on various motions and the trial lasted five days and included many witnesses and exhibits.  The question for the Supreme Court might be how much process is due for weighty Constitutional matters involving Presidential elections?

The Court held that 14(3) is “self-executing”:  that is, enforceable by the court without implementing legislation from Congress.  The last sentence of 14(3) says that Congress may remove an insurrectionist’s disability by a 2/3 vote.  Section 5 of the 14th Amendment (“14(5)”) states that Congress may enforce its provisions by appropriate legislation.

The Supreme Court has held that 14(1) is self-executing (pp. 51-52).   No legislation has been enacted to enforce the substantive provisions of 14(2) or (4); nor the 13th Amendment, although 13(2) has a similar enforcement clause as 14(5).  The Supreme Court has also held that the 15th Amendment is self-executing.

DJT relied on Griffin’s Case (1869), decided by Supreme Court Chief Justice Salmon Chase, then acting as an appellate Circuit Court Judge.  Griffin argued that his criminal conviction for assault was immediately void because the judge in the case, Sheffey, took an oath to support the Constitution and then served in Virginia’s legislature during the Confederacy.  Chase disagreed.  Colorado Justice Samour placed considerable emphasis on Griffin’s Case in his dissent.

The Colorado Court Majority noted that Southern states had provisional governments after the Civil War to keep society functioning, and many government officers would have been disqualified as insurrectionists.  Chase concluded that disqualifying an entire class of these provisional officers by declaration, without individual consideration, would offend due process.  “[P]roceedings . . . are indispensable and can only be provided for by congress,” he said.  The Majority did not find Griffin’s Case persuasive.  It is not binding on either the Colorado or U.S. Supreme Court.  The Majority found that Colorado’s statutory process provides the individualized due process consideration that Congress has not provided for 14(3).

There is a law that makes insurrection a federal crime, but it was not passed until 1994:  18 USC Sec. 2383.  DJT has not been charged with that crime by Prosecutor Jack Smith in the criminal case pending in Washington D.C.  The Colorado Court says Sec. 2383 is an alternative, but not exclusive means, of disqualifying DJT from office.  It also says that 14(3) must be self-executing.  If not, Congress’ inaction in enacting enforcing legislation for the 13th Amendment, for example, means that slavery is still legal.

The meat of the Colorado Court’s interpretation of 14(3) is found at pp. 69-89 and involves interpretation of meanings of (1) “office . . . under the United States,” (2) “officer . . . of the United States”; and (3) “oath.”

The Court refers to dictionary meanings of “office” used at the time of the adoption of 14(3) and notes that the Constitution refers to the Presidency as an “office” 25 times.  Although Congresspersons are listed at the beginning of 14(3), they are referred to as “members” of their representative bodies in the Constitution.  It logically follows that an “officer” would hold an “office.”  The purpose of 14(3) is to bar oath breakers from serving in the government, therefore it should not matter what type of “officer” they were.  Finally, the Presidential oath does not use the word “support,” but the oath to “preserve” the Constitution means essentially the same thing.  It doesn’t make any sense to bar “every oath breaking insurrectionist except the most powerful one . . ..”  (P. 87).

After concluding that the January 6 Report was admissible hearsay, the Court determined that DJT “engaged in” an “insurrection.”  The Court found that “an insurrection” is the threat or actual use of force to hinder the execution of the U.S. Constitution.  An insurrection is usually the beginning stage of a civil war, but is more than mob riot because it is an uprising against the authority or operations of the government.  The Court concluded the mob at the Capitol used concerted public force by assaulting officers with the purpose to prevent Congress from certifying the results of the 2020 election.

The Court found that DJT, by being present, directing, and countenancing the insurrection, had “engaged in” it.  The Court detailed those activities, which included pressuring state election officials, promising attendees that the gathering “will be wild,” then telling those gathered “we fight like hell,” and failing to take any action for three hours after the attack on the Capitol commenced.

Finally, the Court concluded that DJT’s statements were not free speech protected by the First Amendment.  The Court applied the Brandenburg case test, which allows states to prohibit advocacy directed to inciting “imminent lawlessness.”  If speech 1) explicitly or implicitly encourages violence, 2) the speaker intends that violence will result, and 3) imminent violence is likely, the speech is not protected.  DJT used variations of the word “fight” twenty times during his speech on Jan. 6.  DJT knew the potential for violence existed because he told the crowd to walk to the Capitol and fight, and then stood back.  The Court agreed with the trial court that DJT acted with the specific intent to incite political violence.

There were three dissents from the Majority opinion.  Justice Boatright would have held that the trial court’s extension of the expedited candidate qualification challenge procedure was not substantial compliance with the statute, and that the Constitutional question was too complex to be decided under those procedures.  Justice Berkenkotter’s dissent was similarly limited, and argued that the trial court did not have explicit authority to consider Constitutional issues under the Colorado statutory procedures.

Justice Samour’s dissent, based on procedural due process, was considerably longer (pp. 146-188) and more persuasive.  Justice Samour does not believe that 14(3) is self-executing, but must rely on an act of Congress to explicitly provide procedures to determine whether a candidate engaged in an insurrection.  The only act existing is the Section 2383 criminal statute.  The essential question is one of state vs. federal power.

Samour found Griffin’s case compelling.  He calls Griffin’s case the “fountainhead” of 14(3) jurisprudence and Chase’s statement that “proceedings . . . are indispensable and can only be provided for by congress” the “beating heart” of the case.  (P. 155).

Justice Samour agrees that the 13th and 15th Amendments are self-executing, but says that the 14th is different.  Here is where I find Samour most persuasive.  The 14th is designed as a curb on state power, and 14(3) is a federal check on the state’s selection of government officials.  (Pp. 166-167).  Therefore, Samour reasons, a congressional act to direct federal oversight is needed.  Congress did enact an Enforcement Act in 1870, and then repealed it in 1948.  Why would it do so if 14(3) is self-executing, Samour asks?

Samour views the “self-executing” argument as an end run around Section 2383.  Samour notes that other Presidential qualifications, such as age, residency, and term limits do not require much process to determine.  14(3) requires “substantial procedural . . . mechanisms to ensure a fair and constitutionally compliant outcome,” he says.

This is where I see the U.S. Supreme Court landing in its inevitable review of the case.  It would be unusual and disappointing if the Supremes decided this case based on the Colorado statute or the facts found by the trial court.  Chief Justice Roberts is concerned about public acceptance of the Court’s decisions, as he should be in the aftermath of Bush v. Gore.

A more acceptable result would be for the Supreme Court to hold that DJT is entitled to more process than afforded by expedited Colorado procedure.  The Supreme Court doesn’t even have to state what those procedures should be.  It can simply hold that 14(3) is not self-executing, and that proper procedures must come from Congressional legislation.  Thereby, no state 14(3) challenges can be successful, and the republic will be spared the chaos of DJT appearing on some, but not all, ballot throughout the country.

The Court will likely say that DJT is due just his (justice) process.  And about half of all voters will be disappointed with that outcome.

 

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