Reaction Podcast: Colorado Supreme Court Bars Trump From Ballot 24:13

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Tuesday evening, the Colorado Supreme Court ruled that former President Trump's actions surrounding January 6th constituted engaging in an insurrection. And as such, he cannot appear on Colorado's primary ballot on Super Tuesday because he's disqualified from serving as president again. That's not true.

That is their decision based on Section 3 of the 14th Amendment, which states, with some abridgment here, no person shall hold any office, civil or military, under the United States 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.

I know that was a lot. We're going to unpack it right now. Some legal scholars have been making the argument since shortly after January 6th that Trump is barred from public office going forward. And lawsuits along those lines have been filed in courts around the country. This is the first to succeed.

But the ruling is stayed through January 4th to give Trump time to appeal to the U.S. Supreme Court, which his team has indicated he will do, casting the decision as, quote, a scheme to interfere in an election on behalf of crooked Joe Biden. Here with me to talk about the law and politics of all of this is Kimberly Whaley, constitutional scholar and professor of law at the University of Baltimore. Welcome to the podcast. Thanks for having me. Delighted to be here. Great to have you. Also with us is senior elections analyst Jeffrey Skelly. Welcome, Jeff.

Hey, Galen, another, you know, Rocky Mountain High, Colorado. Yeah, that song's been on my mind for about, I don't know, 12 hours. Yes, thank you for interrupting our Wednesday. We had planned on pre-recording our holiday episode of the podcast today, but instead we are doing this. But fear not, we will still have a holiday episode of the 538 Politics podcast, so just hang tight. But let's begin with you, Kimberly. Kimberly, what is your take on the 538 Politics podcast?

I laid out sort of the language in the 14th Amendment, but what exactly did the Colorado Supreme Court's decision say about what Trump did and why they made this decision? So there are really...

Three words or phrases that are critical in this provision, which so everyone is reminded, this was enacted and it's in the 14th Amendment, 13, 14, 15, or the post-Civil War amendments to the Constitution. And this part was designed to keep...

Confederate officers, people who had fought against the Union, from contaminating a reconstructed government and throwing bombs everywhere, basically saying, you know, you can't be part of the post-Civil War reconstruction because you're against the Union. That's kind of the theory. So the three key words here are insurrection or rebellion, what constitutes an insurrection or rebellion, engage, what does it mean to engage?

in an insurrection or rebellion? And what is the meaning of the term officer? Does the term officer include the president of the United States? That is someone who had taken the oath for that office. Can that person, if he's engaged in insurrection or rebellion, hold that office again? The lower court in Colorado held

Clearly, January 6th was an insurrection or rebellion. And this is just to be clear. I think people are talking about, oh, there should be a full-blown jury trial. There was an evidentiary hearing with evidence. There was a trial or a form of trial. So this was a factual determination based on witnesses and documents. It was an insurrection or rebellion. Donald Trump did engage in it within the meaning of Section 3. But

the president is not an officer, that you have to be subordinate to the president to be an officer. So it was kind of a cute technical argument to avoid sort of the maelstrom that we're now in, which is, whoa, there's a state that said the presumptive nominee for the Republican candidacy for president 2024 is kicked off the ballot in one state.

The Supreme Court of Colorado, there are seven people on the Supreme Court. They're all appointed by governors. The majority was four justices. There were three dissents and three separate writings, but the majority basically agreed with the lower court and said, yep, it's an insurrection or rebellion. Yep, Donald Trump engaged in that, but

an officer includes the president of the United States. And they did, it's a very lengthy decision, I think all told 213 pages between all four opinions. But they said, you know, the presidency is treated as an office of the United States 25 different times in the constitution, including, for example, in connection with impeachment. So to say that it's not an office just kind of, it just blinks the plain language of

of the Constitution itself. And I'm paraphrasing, they say, listen, we know this is a big deal and we don't take this lightly, but we have to apply the text as it's written. There are a lot of different arguments being made about this. And of course, this is a super consequential decision that will be appealed. So there will be more to say on this in the legal realm. But

from all sides, really, we're hearing opinions. And one of the main ones we're hearing is like, okay, in terms of engaging in an insurrection, Donald Trump was not removed from office for engaging in an insurrection. He was not found at this point to have engaged in an insurrection in the federal case that's being pursued by Jack Smith. That hasn't happened yet. So can this court just on its own come to the conclusion that, yeah, he engaged in an insurrection without any other sort of criminal markers on his record for having done so?

I mean, what argument do they make that they have the power to sort of make that conclusion?

The dissenting justice who makes that argument goes back to a case from right after the Civil War and pulls out some language. It was a circuit court case written by then Justice Samuel Chase, but he wasn't sitting as a Supreme Court justice, and takes out some language and essentially says there was an assumption that this would be some kind of criminal adjudication, but it's not anywhere in the Constitution. And of course,

Courts do make rulings based on facts all the time without a full-blown criminal trial. And so he argues, well, it's a due process issue, that essentially you have a due process right to be a candidate for president, and due process requires something more than this kind of evidentiary hearing that was held.

that the lower court engaged in. But, you know, I teach due process law and administrative law. I think that's a misreading of the due process clause. The due process clause goes back to the Magna Carta in 1215. And the idea is the government can't take your life, liberty, or property, cannot execute you, can't take your liberty, put you in jail, and can't take your property without some kind of process.

It doesn't have to be a full-blown jury trial. But the first trigger is it has to be life, liberty, or property. And I think the response to that is this is basically applying for a job. This is, you know, there's no constitutional property or liberty right to being a presidential candidate. And then the other argument is, well, the voters should secede. Well, the Constitution says the voters cannot pick someone under the age of 35. The voters cannot pick someone

Somebody who's born in a foreign country. So the Constitution already set some parameters around voter choice and take some options off the table. And I just see this as another option that the Constitution takes off the table. We don't have a situation where, you know, you can nominate your dog or you can nominate your 12 year old. I mean, it's like if you don't like it, amend the Constitution.

Yeah, so that's certainly also a perspective that we've heard. But this is going to go to the US Supreme Court now. And I should say that conservative legal scholars have made exactly that argument, that this might not be ideal, and it might feel uncomfortable from a democratic perspective. But if you're going to read the Constitution from an originalist perspective, you kind of can't read the 14th Amendment any other way than to say that former President Trump cannot serve as, you know, in public office again. Now,

These things are messy. And to that point, all seven of Colorado's

Supreme Court justices were appointed by Democrats, just as an example, and three of them dissented. So only four of them were in the majority, although that is, of course, a majority. And I think that a lot will be made of that, that all of these justices who did make this ruling were appointed by Democrats. And we can talk about what that means. But the other two justices dissented on totally sideshow reasons having to do with state law. So there's really only one justice who dissented

you know, strictly based on the reading of Section 3 of the 14th Amendment.

And when it comes to the sort of who appointed whom questions surrounding the legitimacy of the court, which get brought up all the time, when we get to the U.S. Supreme Court, which is where this is headed, of course, six of those justices were appointed by Republican presidents and three of them were appointed by Democrats. Do we have I mean, this is novel. We haven't approached this before in American politics. Do we have any sense of how the Supreme Court is going to address this question?

It would be shocking if Justice Alito and Justice Thomas are not firmly in the camp that whether you read the word officer or you say that you need to have proof beyond a reasonable doubt in a jury conviction, or they could say, you know, there are a number of ways, a number of outs. I think, you know, and Sotomayor and Kagan and Jackson, I would assume, are going to, and Jackson's been doing this in her opinions,

She's been using an originalist template. She's been saying, okay, let's look at the plain language. Let's do a textualist analysis. Let's go in our time machines back to 1788, which this Colorado Supreme Court did, pulled out the dictionary definitions of officer. She's done that. And I think they're going to say, okay, we'll do the Scalia traditional conservative analysis, but

This is an insurrection. He engaged in it. I mean, the idea that the president is somehow outside the scope of an officer of the United States, I think just defies logic. So I think the question is going to come down to Chief Justice Roberts, Justice Kavanaugh, Justice Gorsuch, and Amy Coney Barrett. Those are going to be the justices that will decide it. And of course, in Bush versus Gore in 2000, many of these justices were not on the court. The court essentially stepped into what was a purely

state law question under Florida law and decided an election for the country. Justice Scalia took a lot of heat for that. So I say that because I think Justice Roberts is going to be very careful about jumping on the conservative bandwagon here. So that would leave

um you know that would leave four justices potentially in a majority supporting the colorado supreme court and all they would have to say is listen this is a matter of state law we're not going to interfere states get to decide their electoral processes including what constitutes a disqualifying feature of their processes and that's really what this is about under colorado law is donald trump disqualified under colorado law and they loop in the constitution

It's a totally legitimate thing for the court to take up, but they could take federalism and say we're staying out of it. So then I would say it would come down to Gorsuch, Coney Barrett and Kavanaugh where they would go. I mean, I'm just thinking out loud here, but there's no way it would be unanimous. It's going to be a split decision if they do take it up.

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Former President Trump's competitors in the Republican primary reacted to all of this and maybe beyond just leaders in the Republican Party.

Well, there's been pretty much just total pushback on the decision disagreement. Now, how, for instance, Trump's opponents have have worded their disagreement, his primary opponents, I should say, has has varied to some extent. For instance, Nikki Haley said she doesn't think that Trump needs to be president, that she should be president. But she we don't need to have judges making these decisions. We need voters to make these decisions.

DeSantis turned to saying the left invokes democracy to justify its use of power, even if it means abusing judicial power. SCOTUS should reverse and

Chris Christie even said, look, he's like, you know where I stand on Trump, basically saying he thinks that he did engage in insurrection, but that he thinks the voters have to decide this. And Vivek Ramaswamy, who basically said that he wants to be removed from the Colorado primary ballot because he thinks this is a completely outrageous decision. And what's interesting actually is that the Colorado Republican Party has said itself that if Trump is removed from the ballot,

primary ballot, and they'd have to make this decision very quickly, but the Republican National Committee could indeed allow them to make this decision, which would be the Colorado Republicans could decide to hold a party caucus instead of using the primary ballot to decide the allocation of delegates. So basically, the state of Colorado couldn't stop the party from allocating delegates to Trump through a party caucus, a party-run event like that. So that's sort of been the response. Just

And as you'd expect, it's been very polarized. A lot of Democrats are supportive. I saw a comment from Chris Coons, the senator from Delaware, saying that Trump engaged in insurrection. He should be disqualified under the 14th Amendment.

Is it clear how persuasive any of these arguments, either for or against, are to the American public? I know that this ruling came down less than 24 hours ago, so there haven't been any polls in the field since. But from looking at other forms of question, have we really gotten at this anywhere?

Well, there actually was a poll that was released by the New York Times Siena College that came out just today, in fact, that was asking about if Trump is convicted of a crime and asked Republicans about this, should he be the Republican nominee? And 62% of Republicans said he should still be the nominee. 32% said he shouldn't be. This is just Republicans, mind you, Republican primary voters.

And there was a big split there in terms of sort of education where people who had a four-year college degree who were Republican primary voters were split just about evenly on the question. But voters without a college degree were almost like three-fourths in favor of him remaining the nominee if Trump is the nominee. But of course, that's a conviction. It's not quite the same. We don't have like –

A super recent poll on the 14th Amendment question, but there was a survey from Morning Consult and Politico back in September that asked about this. And so they just asked generally to people, would you support the idea of someone being disqualified for having engaged in insurrectionist behavior under the 14th Amendment? And 63%, so this is not naming names here, 63%

strongly or somewhat supported it among registered voters. And Republicans split about even on that with Democrats and independents much more strongly in favor. But then if you asked about Trump, had he engaged in insurrection or rebellion, 51% said definitely or probably, and 35% said definitely not or probably not. And of course, eight in 10 Democrats felt that he had, and one in four Republicans felt that he had. So a huge split there.

And if you asked, does that 14th Amendment ban apply to Trump, you basically get the same response, which was like a hair over a majority saying yes. And a lot of people also saying not sure. My guess is with most of these things is that it would just become further polarized as things move on. Like if this is going to be more and more in the news and the possibility of the 14th Amendment coming into play in other states and the fact that it looks like it's going to go to the Supreme Court.

I would imagine that it will just be further polarized. The suggestion here has been that things don't stop here. It's going to go to the Supreme Court. And it really becomes a question of whether other states begin to pursue this. I know that this argument has failed in other state courts.

So where does that all stand? You know, Colorado was once a purple state. But like, at the end of the day, even even if the Supreme Court says, yeah, Colorado, you can kick Trump off the ballot for the primary. This was only for the primary. But presumably, if they can kick him off for the primary, they can also kick him off for the general. And that stands. Ultimately, that may well not change the outcome of the election at all. But

Are there any states where this is being pursued where it could? I mean, how big could this get? There are multiple lawsuits going on. Some have gotten dismissed because the plaintiff didn't have Article III standing. They just weren't the right plaintiff. Minnesota killed it because, as Jeff indicated, for a possibility in Colorado and Minnesota law, apparently it is purely up to the parties that there is no...

There's no way to keep someone off the ballot for being an insurrectionist. The parties get to override that. In Michigan, the court held, listen, Congress has to pass legislation to implement Section 3. That's more of a constitutional question. But to your point, Galen, under Section 5,

of the 14th Amendment, Congress could pass a law that says, listen, if someone engaged in an insurrection, you can go to court and you can sue to keep them off the ballot across the country. They've never done that. They've never done that. So in order to get into court, you need what's called a cause of action. You need some claim you can make that gets you into court. In Colorado, it had to do with basically enjoining the Secretary of State saying you're not allowed to put ineligible people on the ballot. And that was under

the law of Colorado. So it really depends on the law across the country. Each state has its own mechanisms. In New Mexico, there was a lawsuit, I think last September, September 22, involving somebody else who engaged in January 6, not a presidential candidate. The court there did kick them off the ballot because they used a common law concept called Corruanto. I'm probably mispronouncing it. But the point is lawyers have to kind of find, okay, how do we get this on in front of a judge?

And because there's no national way to do that, it's hodgepodge. And at the end of the day, the question is, are there enough purple states to basically that would do this, that would deny Donald Trump 270 electoral college votes? I think that's close to impossible. Yeah. As Kimberly pointed out, it has failed in some other states so far. It's been dismissed, I think, in Minnesota and New Hampshire. There's a lawsuit that's been filed in Oregon.

I don't know how far it's advanced in Michigan. It got shot down, but I think it's been appealed to the state Supreme court. So in theory, you know, you could see action in Michigan, which would be very notable because unlike Colorado, Michigan would be expected to be very much in play for,

in a presidential election. But I do want, you know, and I would be curious for Kimberly's thoughts on this, but, you know, historically the courts have given political parties a lot of leeway in terms of deciding their nominations and whatever format that involves. So in this case, we're talking about a primary ballot in Colorado where

Yes, the general election is actually where I think this is clearly a bigger deal. But I do wonder about a potential Supreme Court decision that's on much narrower grounds where they just talk about it being –

a party primary, and therefore that would allow – or basically saying Republicans should be allowed to put whomever they want on their ballot. Because historically, there has been a lot of leeway given to parties in this kind of situation. And I'm just thinking about the Supreme Court also looking for an out, a way to try to avoid making a really, really

controversial decision because I would say the Roberts court has at least at times tried to do that. Not always, but has, he does seem to be aware of sort of the court's fragile standing.

It would have to be, the case would have to evolve where the Republican Party decided to hold a ballot, you know, their own process for nominating. And then that got somehow looped into the same case because if that's not in the record, if that's not on the table, they can't just reach out

and decide it. But what they could do is do the opposite. They could say presidents are not officers, and that would basically clear the decks across the country. Then it doesn't matter what a state said. It basically, whatever the state law is, there's no basis for disqualifying any presidential candidate under Section 3 forever. So they couldn't help across the board Democrats with a ruling. They could only help across the board

Trump with a ruling. They could clean house for Trump, but they couldn't do it the other way. The best they could do is say, "Listen, the states get to do it how the states get to do it, and they can hash it out with their parties, and we're just not going to mess with Colorado. If this is how the Colorado Supreme Court wants to read their election code, which is essentially what they're doing, we're not going to interfere because we're the federal government and states get to decide how we run elections under the Constitution."

Yeah. And also, interestingly enough, we have heard arguments about the limitations of state government control over elections processes from the other direction in regard to what states can or cannot do with their results. So that gets messy quickly. But of course, this is not over. We have until...

January 4th for an appeal. And this will go to the Supreme Court, as we mentioned, so we'll have more to talk about then. But thank you so much for joining me today on such short notice. Thanks, Galen, as always. Thanks for having me. It's been great.

My name is Galen Druk. Tony Chow is in the control room. Our producers are Shane McKeon and Cameron Tretavian, and our intern is Jayla Everey. You can get in touch by emailing us at podcasts at 538. You can also, of course, tweet at us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple Podcast Store or tell someone about us. Thanks for listening, and we will see you soon.