The Colorado Supreme Court’s Misbegotten Attempt to ‘Get’ Trump

L ast week’s oral argument in the Supreme Court in Anderson v. Colorado made clear that the Court will likely reverse Colorado’s decision to disqualify former president Donald Trump from the presidential ballot on the basis of Section 3 of the 14th Amendment. It may be that in disputes of this importance, lawyers can do little to sway the high court, but the lawyers defending the Colorado supreme court did themselves no favors by evading hypotheticals, ignoring the implications of their argument for other states and future elections, and even disregarding the justices’ admonishments to stop avoiding their questions.

The disastrous — at least from Colorado’s perspective — oral arguments raise the strong possibility that the Court’s ruling may be lopsidedly in Trump’s favor or even unanimous. Even Justice Sonia Sotomayor, whose questioning was often hostile to Trump’s position, held the door open to an opinion that would hold that states cannot disqualify Trump from being a presidential candidate.

Such an outcome, which we advocated when progressive lawyers started filing these disqualification claims last summer, would not only have reached the right interpretation of the Constitution but may also begin the process of ending such meretricious exercises in electoral lawfare. The ruling we expect would not only be firmly rooted in what since 1869 has been the prevailing view of Section 3 of the 14th Amendment, it would also be an affirmation of the principle that the people, rather than the courts, should choose their elected officials.

Not surprisingly for a Court whose jurisprudence relies heavily on text and structure, much of the questioning focused on the language of the Section 3 provision that subjects “officers of the United States,” who had sworn to support the Constitution, to disqualification from certain offices if they have engaged in “insurrection.” The questioning also explored constitutional structure, including the relationship between Section 3 and the presidential-impeachment clause. Likewise, several justices (including Justice Clarence Thomas) expressed an interest in the history (or lack of it) of state attempts to disqualify candidates from presidential — or, indeed, any federal — office under Section 3. Justice Ketanji Brown Jackson wondered if barring Confederates from holding the presidential office — as distinct from their resuming control over the apparatus of state governments — was one of the core purposes of the 14th Amendment’s framers. Several justices questioned Colorado’s claim that the framers sought to enlarge state power over federal candidates and officers so soon after the Civil War.

What was less expected was the justices’ concern with the practical consequences of allowing states to disqualify presidential candidates under the 14th Amendment, which could spell chaos for federal elections. Justice Samuel Alito pressed the question of whether Colorado’s determination that Trump had engaged in insurrection would bind other states and, if not, whether significant variations would arise from state to state in defining “insurrection.” Chief Justice John Roberts worried that states would be drawn into retaliatory disqualifications against each other’s favored candidates.

It is certainly appropriate for the Court to give the likely repercussions of Colorado’s decision substantial weight: Pragmatic considerations can bear directly on the meaning of the constitutional text and structure. The Court’s regular practice in constitutional cases such as this is to align textual, structural, and consequentialist arguments. In Nixon v. United States, for example, the Court examined the constitutional text on whether the Senate itself must “try” impeachments, but it also criticized the consequences that would follow if courts exercised judicial review over a Senate conviction of impeachment.

The Colorado court’s defenders attempt to appeal to conservatives by relying on our federalist system of government. They argue that the Constitution generally reserves most public-policy decisions for the states, that states have the primary authority to conduct elections, and that states should have the ability to decide whether a candidate has “engaged in insurrection or rebellion.”

But these Trump critics ignore the broader themes in the Court’s recent jurisprudence. In general, the Roberts Court has been unwilling to upend established political practices, such as long-standing state sanctions for “faithless” presidential electors (Chiafalo v. Washington). It has also refused to endorse innovations such as the “independent State legislature theory,” which would have given state legislatures sole authority to establish election laws for federal offices without the possibility of state-court review (Moore v. Harper). The Court is equally likely to be the graveyard for a recently minted and potentially disruptive interpretation of Section 3.

Consistent with their desire to shield the Court from entanglement in electoral lawfare, the justices have also sought, perhaps with less success, to avoid the federal judiciary’s serving as a sort of ombudsman over the political system. One of the agenda items of legal progressives has been to pull the courts into politics (hence, there is now a new “law of democracy” field). Democrats’ success in persuading many state supreme courts to change voting procedures and deadlines in the 2020 elections — to change how elections measure the will of the people — demonstrate the force of this movement.

This is a dangerous thicket, and the Roberts Court is attempting to steer the federal courts away from it. In Shelby County, the Court held unconstitutional the 1965 Voting Rights Act’s severe provision that would have frozen into place the voting procedures in the segregationist South. (States that fell under the law would not be able to change any rule regarding elections without approval from a federal court or the Justice Department — a remarkable intrusion into state sovereignty). In Common Cause v. Rucho just last year, the Court rejected a decades-long effort to convince judges to reject the partisan gerrymandering of congressional districts.

Refusing to manipulate the Constitution to pick and choose among presidential candidates that are to be allowed on the ballot would further advance the Roberts Court’s efforts to remove federal judges from the job of supervising politics.

The big losers in Anderson will be those who tried to use lawfare to stop Donald Trump stone-cold dead in his tracks. Their attempt has backfired — badly. In their zeal to preserve “our democracy,” they have themselves proven to be a danger to it. Let the voters decide. 

John Yoo is a law professor at the University of California, Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution. He filed an amicus brief for the Claremont Institute in support of Donald Trump in Trump v. Anderson. Robert J. Delahunty is a Washington Fellow of the Claremont Center for the American Way of Life. He was retained as an expert witness on behalf of Donald Trump in the Colorado trial court proceedings.