Will Trump be on the ballot?

NEW YORK — On March 5, 2024, the people of Colorado will vote in a “primary election” to determine which candidates can compete for the US presidency in November. The question now looming is whether former president Donald Trump’s name will appear on the Republican Party’s primary ballot.

In a recent decision, variously characterised as a “bombshell”, “explosive”, and “a huge moment for democracy”, the Supreme Court of Colorado answered “no”. A 4-3 majority on the court ruled that Trump’s fate was sealed by Section 3 of the Fourteenth Amendment, which prohibits “insurrectionists” from holding federal or state office.

The court’s decision follows from a lower state court determination that Trump engaged in insurrection in late 2020 and early 2021, by knowingly and intentionally seeking to disrupt the orderly transition of power. In addition to lying about election fraud, he also incited his followers to disrupt the counting of electoral votes, and simultaneously participated in a plan to replace certified state electors with fake pro-Trump slates. The Court concluded that these actions amounted to an active rebellion against the US Constitution.

Trump’s behaviour places him in the company of past government officials who, in 1860 and 1861, participated in their states’ secession from the Union and ensuing establishment of the Confederate States of America. That effort failed, following a protracted and bloody conflict. The end of the Civil War (1861-65) was consummated by a bundle of Constitutional Amendments that have been referred to as America’s “second founding”: the Thirteenth Amendment, which ended the institution of slavery, the Fifteenth Amendment, which established universal male suffrage, and the Fourteenth Amendment, which endowed “all persons” with federal rights of due process and equal protection and, in Section 3, sought to further safeguard democracy by barring insurrectionists from public 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… 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.”

While the two Colorado courts agreed that Trump “engaged in insurrection”, their legal analyses diverged. The lower court ruled out disqualifying Trump from participating in the Colorado primary election on the grounds that the term “officer” does not apply to the presidency. But the state’s Supreme Court called this interpretation absurd.

In the Court’s view, the plain meaning of the word “office,” based on how it was used at the time the amendment was drafted, undoubtedly included the presidency. Moreover, the higher court notes, what sense would it make for the drafters to disqualify every oath-breaking insurrectionist except the most powerful one? Surely, no one believed that Jefferson Davis, the former president of the Confederacy who had previously sworn to uphold the US Constitution as a senator and secretary of war, would be eligible to become US president. The Congressional Record, which documents the debates surrounding the amendment, offers unambiguous support for this view.

The last word on this controversy has yet to be heard. It lies secreted in the hearts and minds of the current US Supreme Court, which will soon have to rule on the matter. In the meantime, Trump’s name will remain on the ballot. The Colorado Supreme Court stayed, or postponed, its ruling from taking effect until January 4, 2024: the day before the Colorado secretary of state is required to certify the candidates on the state’s presidential primary ballot. The outcome thus depends on what the US Supreme Court decides to do before the stay ends.

There is ample room for the high court, with its hard right majority, to reverse the Colorado decision. For one thing, it could reject both state courts’ findings of fact regarding Trump’s engagement in insurrection. Typically, however, higher courts tend to defer to lower courts’ fact-finding. After all, reviews on appeal involve a cold record; there is no opportunity to assess a witness’s demeanor or other hints of credibility (or a lack thereof) that live trial testimony offers.

But other issues remain. For example, the US Supreme Court has never ruled on whether Section 3 is “self-executing”, or requires some enabling legislation by the US Congress before it can be applied. Colorado’s Supreme Court says the states are entitled to interpret their own election laws concerning constitution-based ballot disqualifications without waiting for federal guidelines.

This view finds support in the Court’s well-aimed citation of a decision by Justice Neil Gorsuch before he became a member of the current US Supreme Court. But, of course, justices have a history of changing their minds. As to whether the high court will endorse an inclusive or narrow definition of the word “office” remains anyone’s guess.

The US Supreme Court has been called the “least dangerous branch” of the federal government, for it has neither the legislature’s power of the purse nor the presidency’s command of the armed forces. Its sole currency is the public’s willingness to accept the legitimacy of its authority. That currency has been devalued of late, not least by the court’s mounting ethics scandals and shocking reversal of Roe v. Wade, which repudiated longstanding precedent upholding a woman’s right to privacy in choosing whether to continue a pregnancy.

Upon reviewing questions surrounding Trump’s engagement in insurrection and whether Section 3 applies to the president, the Supreme Court will have to consider whether, or to what extent, it is willing to gamble on further eroding the public’s support. It is a fraught time for the republic, and for a Court already freighted with heightened suspicion of conflicts of interest and political capture.

Richard K. Sherwin, professor emeritus of Law at New York Law School, is the author of “When Law Goes Pop: The Vanishing Line between Law and Popular Culture“ (University of Chicago Press, 2000). Copyright: Project Syndicate, 2023. www.project-syndicate.org