Former President Donald Trump was denied his application to be on the Colorado Republican primary ballot by the Colorado Supreme Court that determined he is not qualified to serve as president again. The case, now before the U.S. Supreme Court, is really about states rights under the U.S. Constitution and presents a tricky legal question for the court.
The framers of the Constitution deliberately did not want the federal government to run elections. They left it up to each state to regulate their elections, including the qualifications of the candidates. Instead of a national popular vote for president and vice president, the Constitution provides that “electors” nominated by state political parties cast their votes based on votes in the states’ presidential election.
The Colorado Supreme Court determined Trump was not qualified to serve as president because he had participated in the Jan. 6, 2021, insurrection against the U.S.
Section 3 of Amendment 14 of the U.S. Constitution prohibits any person who “engaged in insurrection or rebellion against the (Constitution)” from holding an elective office in U.S. government. Colorado election law requires that any candidate for public office must be qualified to serve in that office.
Trump’s lawyers appealed. After a five-day trial and appeals, the state Supreme Court noted that Trump had asked the Jan. 6 crowd to go to the Capitol to “fight like hell” to stop Congress from certifying Joe Biden as president. The U.S. Supreme Court is reviewing the Colorado Supreme Court’s decision.
There is a general principle in law that higher courts should not disturb the factual findings of the trial court as long as there is support for them. Further, the U.S. Supreme Court should defer to how a state interprets and applies its own laws. Thus, the U.S. Supreme Court should accept the Colorado decision that Trump is not qualified to participate in the primary.
If it does so, then the issue could not be contested by other lower courts, including state courts. If the high court follows these principles, its decision would bar Trump from again holding office as president.
If the court overrules the Colorado decision, it would deny Colorado’s rights to determine the qualification of candidates in its elections. Given the makeup of the present justices, it is unlikely they would agree that Trump is not qualified to serve as president again. To avoid deciding whether Section 3 applies to Trump, and not overrule Colorado’s decision, they might hold that it is up to each state to decide whether Section 3 applies to Trump.
If the court did actually apply Section 3, it should best be done by a unanimous decision – also very unlikely.
I feel it would be wrong for the Supreme Court to avoid deciding whether Section 3 applies to Trump since he participated in the Jan. 6 insurrection to overturn a legitimate election.
Using force and violence to challenge an election should not be tolerated in a democracy. If Trump’s actions do not have consequences, then future candidates can declare, without evidence, that their election was “stolen” in order to justify the use of violence against the government.
Section 3 of the 14th Amendment should be enforced. The Colorado Supreme Court’s decision should be affirmed, and Trump should not be allowed to run for president again.
Robert C. Dawes is a retired attorney and practiced law in Durango for 45 years.
