The three main issues in Trump’s disqualification

On the Colorado Supreme Court’s big ruling

Colorado’s Supreme Court has determined that, under the insurrection clause of the 14th Amendment to the US Constitution, Trump is ineligible to serve as president again, and thus his name may not appear on the Republican primary ballot in March. In doing so, the court overruled a determination by a state district court from a month ago. This is a big freaking deal. It is going to get messier, and we can probably expect similar sorts of big qualification decisions and reversals throughout the coming year.

If you’re one of those people asking why all these non-Trump Republican candidates have been competing in debates, this is why! This is a legitimate bombshell, and if there’s some chance that one of the candidates isn’t just controversial but literally can’t run for president in several states, that seems worth considering. (Also I feel vindicated in covering all those debates.)

But it’s worth digging into three important aspects of this ruling that are likely to come up in other states and in Supreme Court arguments. Important disclaimer: I am not a lawyer, but these are the claims that struck me as interesting and, in many cases, legitimately debatable.

1. The first important claim here is that Donald Trump participated in an insurrection. And here, the state Supreme Court was in full agreement with the district court — January 6th was an insurrection of the sort defined by Amendment XIV, section 3, and Donald Trump very much participated in it, and even organized it. And it seems quite clear from the text of that section that the authors of the amendment, just coming out of the Civil War, did not want people involved in insurrections to hold 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, 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.

2. The second important claim also concerns that very text. As you’ll notice, that section delineates quite a few public offices, but notably does not mention the presidency of the United States. And indeed, as Trump’s lawyers have pointed out, the president takes a different oath upon taking office than any other public officer does. This is why the district court held that, even though Trump clearly engaged in insurrection, the amendment didn’t apply to him. That’s not a completely crazy determination, and there’s a longstanding judicial norm that if there are multiple credible interpretations of a statute, the interpretation that favors the defendant should hold.

   But the state Supreme Court disagreed sharply with this. Starting in p. 70 of its decision, it states clearly that the presidency is an “office, civil or military, under the United States,” and notes that the text of the Constitution itself backs up this determination in numerous places. And it makes a very good case that determining otherwise is absurd. For example, Article I of the Constitution says that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” This is the Incompatibility Clause, preventing one person from serving in two branches of government simultaneously. But if we believe that “office under the United States” excludes the Presidency, then one could be President and a House member at the same time, which defeats the entire point of that clause. There are many such examples.

   The ruling additionally notes that it was broadly understood at the time of the 14th amendment’s ratification that it precluded an insurrectionist from serving as President. Not to get all originalist, but the idea that the amendment’s authors and supporters wanted Jefferson Davis banned from the US Senate and the US House but would have been comfortable with him serving as President if that’s what voters wanted is more than a tad nuts.

3. The third big issue is, if the state has decided someone is disqualified from the presidency, can it keep them from appearing on a party primary ballot? This is another interesting question! Parties are, to no small extent, private organizations, and can decide what they want to do and whom they want to put on their ballot, and conceivably that might include people who could never serve in office. However, several Supreme Court decisions have also held that parties do serve a public role and thus there are some limits on their behavior. For example, they can’t limit voting in primaries to just white people. (A completely private club could do that.) And while party nominations are internal decisions, primary elections are state-run. It’s a legitimately tricky area of the law. Importantly, Minnesota’s Supreme Court recently ruled that Trump could appear on the Republican primary ballot, regardless of whether he’s qualified to serve as President, because it is “an internal party election to serve internal party purposes.”

   However, for this case, the Colorado Supreme Court notes that Colorado’s election code precludes parties from running candidates who aren’t qualified: “[E]ach political party that has a qualified candidate... is entitled to participate in the Colorado presidential primary election.” The state Supreme Court ruled that “certifying an unqualified candidate to the presidential primary ballot constitutes a ‘wrongful act’ that runs afoul of… and undermines the purposes of the Election Code.”

So what’s going to happen? First of all, get used to a lot of back-and-forth on this and other issues about Trump’s ability to run for and serve in office. The Supreme Court may simply overrule the Colorado Supreme Court. Or it could rule that this is a question for Congress. (Good luck with that one.) Or it could rule that states can’t tell parties who can and can’t appear on their ballots. Or it could just duck the question. Or something else.

We might see several other states follow Colorado’s lead, keeping Trump from appearing on primary ballots and making it hard for him to win a majority of delegates at the Republican convention next summer. If so, we might see last-ditch efforts by state parties to cancel their primaries altogether or just determine their delegate selections by convention instead. (Vivek Ramaswamy has already said he will withdraw from the Colorado primary if Trump is not on the ballot and called upon other candidates to do the same.) Or the RNC could lower the threshold for nomination. There’s a very good chance that this will be an enormous mess all year, and the Republican convention will simply proclaim Trump as its nominee, and we’ll just have to put a huge number of asterisks next to that one. There are a lot of things that could happen, and I’m not confident predicting just what they’ll be.

Here’s a thing I’m confident will not happen: Republican Party leaders publicly proclaiming, “Hey, maybe we should switch our endorsements to Ron DeSantis or Nikki Haley or someone else who is not facing scores of criminal indictments or a constitutional prohibition against holding office just to spare our party and the nation a massive multi-year governing crisis” and the bulk of primary voters and caucusgoers agreeing with that.