Colorado court's ruling to bar Trump from the state's presidential primary will land in the U.S. Supreme Court

In the Colorado Supreme Court’s decision in Anderson v . Griswold, the court found that Section Three of the 14th Amendment to the U.S. Constitute prohibits Jena Griswold, Colorado’s Secretary of State, from placing President Trump’s name on the presidential primary ballot.

Section 3 of Article Fourteen on Disqualification from Holding Office reads

“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 a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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 ruling of the court was announced on December 19, 2023. ?The court stayed is ruling until January 4, 2024, subject to any further appellate proceedings. The deadline for the state to print its presidential primary ballots is January 5.

The 2024 Colorado Republican presidential primary?will be held on March 5, 2024.

Colorado’s highest court overturned a ruling from a district court judge who found that Trump incited an insurrection for his role in the Jan. 6, 2021, attack on the Capitol, but said he could not be barred from the ballot because it was unclear that the provision was intended to cover the presidency.

Attorneys for Trump have announced they would appeal the Colorado Supreme Court ruling to the U.S. Supreme Court.

In the appeal, Trump’s lawyers will argue that the Section Three does not apply to the offices of the President or Vice-President, an issue of law.

They may further argue an issue of fact, namely that as President, Trump did not engage in an insurrection against the Constitution of the United States.

American Leadership Review has consulted its Crystal Ball to foretell the outcome of this dispute. Before revealing what it foretells, let’s clear away some spurious arguments made in the wake of the Colorado Supreme Court ruling.

"This is what an actual attack on democracy looks like: in an un-American, unconstitutional, and unprecedented decision,” said Vivek Ramaswamy, candidate for the 2024 Republican presidential nomination.[1]

The court’s ruling is based on its reading of the U.S. Constitution’s 14th Amendment. Whether upheld or struck down by the U.S. Supreme Court, the result will stand as Constitutional doctrine interpretating Section Three of that Amendment. Both the procedure and the outcome are constitutional.

Adjudicating disputes over law through the American courts is an archetypically American practice.

In?Dobbs v. Jackson Women’s Health Organization?(2022), the U.S. Supreme Court ruled against the constitutional right to abortion, established by an earlier Supreme Court in Roe v. Wade. ?Whatever the merits of these cases, nothing in them suggests they were an “attack on democracy…un-American, unconstitutional… .”

Ramaswamy is correct only in saying the ruling in Anderson v. Griswold is unprecedented. The issue of interpreting Section Three of the 14th Amendment has never come before the U.S. Supreme Court. Thus, the courts cannot rely on precedent.

Ramaswamy also laid out a constitutional argument on how the ruling was wrong, saying the amendment in question was only intended to relate to former Confederates – members of the American succession who swore allegiance to the breakaway Southern Confederacy triggering the American Civil War (1861-1865) – ?and that "officer" doesn't include the position of president.[1]

This is exactly the argument the lower court in Colorado used in denying the petition to get President Trump off the ballot.

The Colorado Supreme Court disagreed and reversed in part the lower district court’s decision, finding

“Section Three encompasses the office of the Presidency and someone who has taken an oath as President. On this point, the district court committed reversable error.”

"The Framers of the 14th Amendment would be appalled to see this narrow provision—intended to bar former U.S. officials who switched to the Confederacy from seeking public office—being weaponized by a sitting President and his political allies to prevent a former President from seeking reelection," Ramaswamy continued.

Originalism in Constitutional Interpretation holds that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision.

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding.[2]

On Ramaswamy’s reading, Section Three pertains to a past historical event, namely the Confederate rebellion of 1861-65. It is entirely retrospective.

Nothing in the 14th Amendment, however, refers the American Civil War or the Confederacy. ?Adopted three years after the cession of hostilities, the 14th Amendment speaks to fears of rebellions against the Constitution of the United States. The plain reading of the text of the Amendment shows it was intended by its authors to apply to future events and not only to past ones.

Nikki Haley, also a candidate for the Republican presidential nomination, made a populist political argument against the ruling of the Colorado court. During an Iowa campaign stop, she said “We don’t need to have judges making these decisions, we need voters to make these decisions."

Here Haley confuses an election for political office with a plebiscite over an interpretation of the U.S. Constitution. In next year’s election, no points of law will be on the American presidential ballot. Voters will not be deciding over matters of constitutional law, but over which candidate for higher office they want to see elevated to the Presidency.

In a constitutional republic, matters of law are decided by duly appointed judges; matters of fact by juries (grand juries, in decisions concerning indictments for alleged criminal offenses, and trial juries for decisions of guilt or innocence).

Haley’s argument misses the essential function of rule of law in a constitutional republic.

A final point concerns yet another claim of Ramaswamy that “a cabal of Democrat judges are barring Trump from the ballot in Colorado."

The Colorado Supreme Court’s decision in Anderson v . Griswold was deeply divided, with three justices appointed by Democratic governors voting to uphold the lower court’s decision to allow Trump’s name on the state’s primary ballot. There is nothing to suggest the court has acted outside of its jurisdiction or under the sway of any consideration other than the law.

Just as the nine judges of the U.S. Supreme Court are neither Republican judges nor Democratic judges, the justices of the Colorado Supreme Court are non-partisan officials, independent of any higher authority, save the Constitution.

Having cleared the air, we can now focus on American Leadership Review’s Crystal Ball to answer the question, What happens next?

Trump’s team will submit a?writ of certiorari to the U.S. Supreme Court requesting it review Anderson v. Griswold. The U.S. Supreme will expedite the review and issue a 5-4 opinion striking down Colorado’s prohibition on Trump appearing on the state primary election ballot.

The deciding opinion will be taken on the narrowest of grounds, most likely resting on the interpretation of Section Three of the 14th ?Amendment which finds “an officer of the United States” does not cover the President. Chief Justice Robert will write the opinion on behalf of the majority.

Case closed.

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[1] Brady Knox (December 18, 2023). Vivek Ramaswamy pledges to withdraw from Colorado primary if Trump isn't put back on ballot. Washington Examiner. https://www.washingtonexaminer.com/news/campaigns/vivek-ramaswamy-withdraw-colorado-primary-trump-ballot

[2] Gerard V. Bradley,?Moral Truth and Constitutional Conservatism, 81 La. L. Rev. 1317 (2021). https://scholarship.law.nd.edu/law_faculty_scholarship/1484

[3] Stephen Gruber-Miller (December 19, 2023). 'I will beat him fair and square,' Nikki Haley says after Colorado court disqualifies Trump. Del Moines Register. ?https://eu.desmoinesregister.com/story/news/elections/presidential/caucus/2023/12/19/nikki-haley-says-voters-should-decide-on-trump-after-colorado-supreme-court-blocks-him-from-ballot/71978047007/