by Bruce Dunlavy
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On December 19, 2023, the Supreme Court of the State of Colorado handed down a ruling that disqualified former president Donald Trump from appearing on the 2024 primary ballot in that State.

Stunning as the decision may have been, it is in some ways not as monumental as it seems and in other ways more so. It may have little effect on any outcome in the nomination process, and it may not affect the general election in November at all. Nevertheless, it is replete with details that are potentially so consequential that the dissection of its complexities by the U. S. Supreme Court will require a careful balance between precise clarity and nebulous equivocation.

The Colorado court stayed implementation of the ballot disqualification pending review by SCOTUS. The case itself involved the review by Colorado’s highest court of a lower court judge’s decision. The groundbreaking nature of the decision was reflected in the narrow decision, a vote of four to three by a bench consisting entirely of Democratic appointees. The Supreme Courts of other States (Florida, Michigan, Minnesota, and New Hampshire) have declined to hear similar disqualification cases.

Let us look at the background and future considerations that make this case so delicate. As always, I preface my commentary by acknowledging that I am not a lawyer; I’m a historian. Thus my views are informed by an academic background, not a professional one.

The basis for the claim that Trump is Constitutionally disqualified from the ballot is found in the Third Section of the Fourteenth Amendment: “No person shall … hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, … as an officer of the United States, …to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same ….” Is the President of the United States an “officer”? The Constitution’s Article II, which defines and describes the presidency, refers to it as an “office,” a term iterated several times.

The Amendment was ratified in 1868 in response to the Civil War and was aimed at members of the Confederacy and its armies in order to keep them out of government. Does it apply in the present time? “Originalist” judges and Constitutional scholars might say it does not.” Textualists” would say that what the authors of the Amendment might have had in mind is irrelevant and that only the words matter. The judge who made the initial decision determined that Trump participated in the January 6, 2021 actions at the U.S. Capitol and that that was an “insurrection.”

What might SCOTUS do with this case? Colorado is not a State Trump expects to win in November, but the ruling cannot be ignored. If SCOTUS declines to hear it, it would create the possibility of other States – particularly “battleground” States – making similar determinations to Trump’s detriment. Considering that two-thirds of the high court justices are Republican appointees, half of those appointed by Trump himself, they will not want to pull Trump from any ballots anywhere.

In addition, SCOTUS is jealous of its authority and likes to maintain the “Supremacy” invoked in its name. After all, the Constitution’s Article VI asserts that it is “the supreme Law of the Land; and the Judges of every State shall be bound thereby ….” However, the Constitutional interpreters informing the Republican Party today are promoting the idea of “Independent State Legislatures,” a concept that forbids State courts from having any say in elections. Earlier this year, SCOTUS rejected that notion, although they did not delineate where the authority of SCOTUS over State courts stops.

This situation could present difficulties for three of the current justices. Should SCOTUS decide that elections are to be decided by voters and not courts, it would be awkward for Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett. All of them were then in private practice and were part of the team that represented George W. Bush in the 2000 case of Bush v. Gore. In that decision the high court took the opposite stance, ruling to decide the presidential election in favor of Bush before all the votes were determined.

Leaving an opening for the justification of a future change in judicial policy has long been a feature of high court decisions. SCOTUS is careful to preserve the principle inferred from Marbury v. Madison that it has the final say as to what the words of the Constitution mean.

Aside from any procedural grounds for affirming or denying the Colorado court’s ruling, there are practical issues. One, obviously, is that the decision was about the primary election and not the general election. There is no requirement that States must hold presidential primaries. Thus, if SCOTUS decides that Trump can be ruled off the primary ballot, the Republican Party of Colorado can simply change the way it selects its nominee to a convention or to the caucus system used in such States as Iowa.

However, it would indicate to other States that they could do what Colorado has done. In the current political climate, this could result in President Joe Biden being ruled off the ballot in States with Republican-aligned courts. The effect on our already widely-discredited system would be disastrous.

From my viewpoint, the issue is not one for the courts to decide. The Constitution has decided it for us. Trump – or literally anyone else – can not only run for president and get on the ballot, but in fact have their votes counted and even win the election.

The Twentieth Amendment was ratified in 1933 changing and clarifying how and when presidents take office and what procedures are to be followed in specific situations, such as when no candidate receives enough electoral votes to become president. Section 3 of the Amendment includes this passage:

“If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; …”

There you have it: the second clause clearly states that it is possible for a person who is not qualified to be president can still be elected to the office. Suppose that does happen. Do you not think that an Amendment to the Constitution could be proposed, passed, and ratified that would remove the qualification the President-elect does not meet, thus allowing them to take office? In this potential case, another remedy would be the use of the Fourteenth Amendment’s provision that disqualification for participation in an insurrection can be removed by a two-thirds vote of each house of Congress. Perhaps such remedies would be invoked and perhaps not, but it is clear from the Amendment that Donald Trump or anyone else can be elected president even if they are not Constitutionally qualified at the time of the election.