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  • Written by Mark A. Graber, University System of Maryland Regents Professor of Law, University of Maryland
Trump barred from Colorado ballot – now what?

In the wake of the Colorado Supreme Court ruling that bars Donald Trump from the ballot[1] in the state’s primary and general elections, The Conversation U.S. asked Mark A. Graber[2], regents professor of law at the University of Maryland Carey Law School, what this all means – for Trump, for regular Americans and for the 2024 election.

The key questions are about Section 3 of the 14th Amendment to the U.S. Constitution[3]. That provision bars people from holding federal and state offices if they have taken an oath to uphold the Constitution and then violated that oath by participating in an insurrection.

Graber filed an amicus brief[4] that was technically in support of the voters seeking to block Trump from the ballot, but focused specifically on the history of Section 3 of the 14th Amendment. Some of Graber’s scholarly works, including a journal article[5] and a book[6], were cited in the court’s decision.

The court’s ruling has sparked a nationwide outcry[7] – both in support of its conclusions and in opposition to them. And many other states may have to make similar decisions.

Supporters of the court’s decision say it correctly determined that Trump swore an oath to uphold the Constitution at his inauguration, then participated in an insurrection on Jan. 6, 2021, and therefore is not qualified to serve[8] as president. Critics of the decision say judges are trying to usurp voters’ right[9] to choose the president they want.

A man wearing a blue shirt and a hat drops off a ballot in an official box.
The Colorado Supreme Court said Donald Trump could not appear on the state’s 2024 primary or general election ballot. Here, a voter drops off his ballot in Denver during the 2022 election. Photo by Michael Ciaglo/Getty Images[10]

Why are people so interested in this ruling?

Somebody had to go in the water. I think the last thing anyone wanted was for the first successful disqualification of Trump to be a month before the election. Now, the issue is on the table. It wouldn’t surprise me if other states discover the water isn’t all that bad and disqualify Trump. Then we can get answers before people start voting in the primaries and in the general election.

From here, what happens procedurally?

One answer – and I doubt this would happen, but it actually might make sense – is that Trump doesn’t bother appealing. He doesn’t need Colorado delegates to get the Republican nomination. He doesn’t need Colorado electoral votes to win the presidency. And appealing is time-consuming and expensive.

Dating back as far as the Judiciary Act of 1789[11], federal laws have allowed certain types of rulings from states’ highest courts to be appealed directly to the U.S. Supreme Court.

Everybody expects the Supreme Court to get involved. But nobody thinks it is required to. If it were appealed, the court could decline to hear the case, or accept it.

So Trump could appeal. If he didn’t appeal, or if the Supreme Court declined to take the case, then he’s disqualified in Colorado. Perhaps other lawsuits would take place, and he would be on the ballot in some states and not on the ballot in others. The Supreme Court could also say it would consider taking up a future case if a conflict between state court rulings arose.

What if the Supreme Court does take the case?

Most people think there are two options for the outcome, but I think there are three.

The simple option is that the Supreme Court could rule that yes, Trump is disqualified under Section 3 of the 14th Amendment. Then he can’t be on the ballot anywhere.

The second option is the Supreme Court says he’s not disqualified. But the court could hand down two different kinds of rulings saying that.

It could reverse the Colorado Supreme Court’s decision on substance, finding that Trump did not engage in insurrection as insurrection is understood by the 14th Amendment. That would mean no further proceedings are permissible – no state can challenge it, and Congress can’t challenge it.

Or the Supreme Court could reverse it on a technicality – maybe Trump is disqualified, but the 14th Amendment’s Section 3 doesn’t apply to a primary election, or Congress should weigh in, or one or another detail that could mean another lawsuit down the line might be successful.

That’s two options. What’s the third?

There’s a third major option if you look at the way the framers understood how the 14th Amendment would operate. The record of their debates[12] shows that they believed it would first be implemented in the states.

Part of the history is people in the 19th century thought differently than we do. Not simply that they came to different conclusions, but they understood the structure of the government quite differently.

Today, we hear people say many laws and standards can’t be established at the state level, that they need to be uniform across the country. But back then, people were less fearful of diversity. So they were willing to let states vary more. If uniformity was needed, or if Congress did not approve of what the states were doing, Congress could pass more general legislation.

So the court could say, “Colorado has disqualified Trump. That’s OK for Colorado. Other states, you get to do what you think best. And Congress, if you don’t like the mish-mosh, pass a law standardizing it.” I think that’s the least likely outcome, but it may be the one most consistent with the history.

The Colorado Supreme Court says that there doesn’t need to be a criminal conviction of any kind, or a conviction from impeachment, for this provision of the 14th Amendment to apply. Does it matter that Trump has not yet been convicted of any crimes?

The court is absolutely correct.

There are a number of different ways of understanding this point.

The first is that Section 3 states a qualification to be president, just like being born a United States citizen[13]. So the Colorado Secretary of State would make the same decision if there was evidence that Trump was born Latvian. Being born in Latvia is not a crime. But it’s a disqualification.

The second aspect is that prosecutors charge people with crimes for various reasons. They may have decided to seek prosecution of Trump for other actions. Absence of a conviction doesn’t mean an action didn’t happen.

Or imagine that Trump was still president and the attorney general didn’t want to prosecute because the attorney general is in cahoots with Trump. A private person could still bring the lawsuit.

Right after the Civil War, numerous people were disqualified under this provision, none of whom were convicted of anything.

A large, impressive building with columns atop wide granite stairs. The Colorado case may well be headed for the U.S. Supreme Court. joe daniel price/Getty Images[14]

Why is a state court ruling on a federal constitutional provision or requirement?

Is capital punishment constitutional? The death penalty trial starts in the state court. It bubbles up until it gets to the state supreme court, then it goes to the federal courts. Same with abortion.

States decide constitutional issues all the time. Indeed, almost all constitutional issues are first decided by state courts.

What does this mean on a broader scale for the 2024 election?

We’re not at the end. We just got out of the opening. So the meaning could be almost nothing. The U.S. Supreme Court could reverse the Colorado ruling and say all these lawsuits are wrong. And so we have an interesting academic discussion, but nothing changes.

Or we could have a very long debate about this. And at some point, for example, a number of prominent Republicans could conclude that Trump really is an insurrectionist, and this starts to have serious play in Republican primaries.

We’re still too early to know whether this is a blip or an earthquake, or something in between.

People are scrambling to figure out what they’re going to do. The Colorado Republican Party has just announced they’re considering a caucus rather than the primary[15] to avoid needing Trump’s name on a state ballot – at least for the primaries. People are maneuvering.

How does it feel to be cited in a Colorado Supreme Court decision like this?

I’m an academic. Favorable citations are 100 on a scale of 100 points. Unfavorable citations are 99. No citations is zero.

References

  1. ^ bars Donald Trump from the ballot (www.cnn.com)
  2. ^ Mark A. Graber (www.law.umaryland.edu)
  3. ^ Section 3 of the 14th Amendment to the U.S. Constitution (constitution.congress.gov)
  4. ^ amicus brief (www.dropbox.com)
  5. ^ journal article (dx.doi.org)
  6. ^ book (kansaspress.ku.edu)
  7. ^ nationwide outcry (www.bostonglobe.com)
  8. ^ not qualified to serve (thehill.com)
  9. ^ judges are trying to usurp voters’ right (www.washingtonpost.com)
  10. ^ Photo by Michael Ciaglo/Getty Images (www.gettyimages.com)
  11. ^ Judiciary Act of 1789 (www.law.cornell.edu)
  12. ^ record of their debates (memory.loc.gov)
  13. ^ being born a United States citizen (constitution.congress.gov)
  14. ^ joe daniel price/Getty Images (www.gettyimages.com)
  15. ^ considering a caucus rather than the primary (www.nbcnews.com)

Authors: Mark A. Graber, University System of Maryland Regents Professor of Law, University of Maryland

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