How did the Colorado Supreme Court justify extending Section 3 of 14th
amendment to the presidency? How did the minority opinion argue
against this?
This answer looks at the majority opinion of the Colorado Supreme Court, then at the three dissenting opinions, after first briefly reviewing the trial court opinion which it reviews. This answer then notes Trump's official reaction, and examines why the case has the timing it does and what the next step is after the Colorado Supreme Court's ruling.
The Trial Court Decision That Was Appealed
The Colorado Supreme Court ruling affirmed the 102 page long trial court ruling of Denver District Court Judge Sarah B. Wallace, entered after a five day evidentiary hearing which was followed by closing arguments from the parties several days later. The Colorado Supreme Court was required to defer to Judge Wallace's factual findings.
The trial court held that the contest was procedurally sound, and that the Trump did participate in an insurrection, but held that Section 3 of the 14th Amendment does not apply to the office of President of the United States, a position that none of the seven Colorado Supreme Court justices agree with on appeal. The majority overrules this part of the trial court's opinion, and the dissents don't address this part of the trial court's opinion (but don't expressly disagree with the majority's opinion on this point).
The Colorado Supreme Court's Majority Opinion
The official syllabus of the Colorado Supreme Court opinion states:
The 133 page per curiam opinion (the three dissents are also at this link) of the four justice majority summarizes its ruling as follows:
¶4 The Electors and President Trump sought this court’s review of
various rulings by the district court. We affirm in part and reverse
in part. We hold as follows:
• The Election Code allows the Electors to challenge President Trump’s
status as a qualified candidate based on Section Three. Indeed, the
Election Code provides the Electors their only viable means of
litigating whether President Trump is disqualified from holding office
under Section Three.
• Congress does not need to pass implementing legislation for Section
Three’s disqualification provision to attach, and Section Three is, in
that sense, self-executing.
• Judicial review of President Trump’s eligibility for office under
Section Three is not precluded by the political question doctrine.
• Section Three encompasses the office of the Presidency and someone
who has taken an oath as President. On this point, the district court
committed reversible error.
• The district court did not abuse its discretion in admitting
portions of Congress’s January 6 Report into evidence at trial.
• The district court did not err in concluding that the events at the
U.S. Capitol on January 6, 2021, constituted an “insurrection.”
• The district court did not err in concluding that President Trump
“engaged in” that insurrection through his personal actions.
• President Trump’s speech inciting the crowd that breached the U.S.
Capitol on January 6, 2021, was not protected by the First Amendment.
¶5 The sum of these parts is this: President Trump is disqualified
from holding the office of President under Section Three; because he
is disqualified, it would be a wrongful act under the Election Code
for the Secretary to list him as a candidate on the presidential
primary ballot.
The state law statute authorizing the lawsuit states:
¶44 The current version of section 1-1-113 establishes (with
exceptions not relevant here) “the exclusive method for the
adjudication of controversies arising from a breach or neglect of duty
or other wrongful act that occurs prior to the day of an election.” §
1-1-113(4) (emphasis added). It provides: When any controversy arises
between any official charged with any duty or function under this code
and any candidate, or any officers or representatives of a political
party, or any persons who have made nominations or when any eligible
elector files a verified petition in a district court of competent
jurisdiction alleging that a person charged with a duty under this
code has committed or is about to commit a breach or neglect of duty
or other wrongful act, after notice to the official which includes an
opportunity to be heard, upon a finding of good cause, the district
court shall issue an order requiring substantial compliance with the
provisions of this code. The order shall require the person charged
to forthwith perform the duty or to desist from the wrongful act or
to forthwith show cause why the order should not be obeyed. The
burden of proof is on the petitioner. § 1-1-113(1) (emphases added).
The next part of the majority's analysis considers where it is appropriate for state courts to consider this issue, in general, and not just under Colorado's relevant statute. The majority reasons that:
¶50 “Common sense, as well as constitutional law, compels the
conclusion that government must play an active role in structuring
elections . . . .” Burdick v. Takushi, 504 U.S. 428, 433 (1992). The
Constitution delegates to states the authority to prescribe the
“Times, Places and Manner” of holding congressional elections, U.S.
Const. art. I, § 4, cl. 1, and states retain the power to regulate
their own elections, Burdick, 504 U.S. at 433. States exercise these
powers through “comprehensive and sometimes complex election codes,”
regulating the registration and qualifications of voters, the
selection and eligibility of candidates, and the voting process
itself. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)
(“Celebrezze”); see also, e.g., § 1-4-501(1), C.R.S. (2023) (setting
qualifications for state office candidates). These powers are
uncontroversial and well-explored in U.S. Supreme Court case law.
¶51 But does the U.S. Constitution authorize states to assess the
constitutional qualifications of presidential candidates? We conclude
that it does.
¶52 Under Article II, Section 1, each state is authorized to appoint
presidential electors “in such Manner as the Legislature thereof may
direct.” U.S. Const. art. II, § 1, cl. 2. So long as a state’s
exercise of its appointment power does not run afoul of another
constitutional constraint, that power is plenary. Chiafalo v.
Washington, 140 S. Ct. 2316, 2324 (2020); McPherson v. Blacker, 146
U.S. 1, 25 (1892). 31
¶53 But voters no longer choose between slates of electors on Election
Day. Chiafalo, 140 S. Ct. at 2321. Instead, they vote for
presidential candidates who serve as proxies for their pledged
electors. Id. Accordingly, states exercise their plenary appointment
power not only to regulate the electors themselves, but also to
regulate candidate access to presidential ballots. Absent a separate
constitutional constraint, then, states may exercise their plenary
appointment power to limit presidential ballot access to those
candidates who are constitutionally qualified to hold the office of
President. And nothing in the U.S. Constitution expressly precludes
states from limiting access to the presidential ballot to such
candidates. See Lindsay v. Bowen, 750 F.3d 1061, 1065 (9th Cir.
2014).
¶54 No party in this case has challenged the Secretary’s authority to
require a presidential primary candidate to confirm on the required
statement-of-intent form that he or she meets the Article II
requirements of age, residency, and citizenship, and to further attest
that he or she “meet[s] all qualifications for the office prescribed
by law.” Moreover, several courts have expressly upheld states’
ability to exclude constitutionally ineligible candidates from their
presidential ballots. See id. (upholding California’s refusal to
place a twenty-seven-year-old candidate on the presidential ballot);
Hassan v. Colorado, 495 F. App’x 947, 948–49 (10th Cir. 2012)
(affirming the Secretary’s decision to exclude a naturalized citizen
from the presidential ballot); Socialist Workers Party of Ill. v.
Ogilvie, 357 F. Supp. 32 109, 113 (N.D. Ill. 1972) (per curiam)
(affirming Illinois’s exclusion of a thirty-oneyear-old candidate from
the presidential ballot).
¶55 As then-Judge Gorsuch recognized in Hassan, it is “a state’s
legitimate interest in protecting the integrity and practical
functioning of the political process” that “permits it to exclude from
the ballot candidates who are constitutionally prohibited from
assuming office.” 495 F. App’x at 948. ¶56 The question then becomes
whether Colorado has exercised this power through the Election Code.
We conclude that it has. Section 1-4-1204(4) is Colorado’s vehicle
for advancing these state interests. When eligible electors challenge
the Secretary’s listing on the presidential primary ballot of a
candidate who is not constitutionally qualified to assume office,
section 1-4-1204(4), as exercised through a proceeding under section
1-1-113, offers an exclusive remedy under the Election Code. See §
1-1-113(4).
The majority then examines two related arguments, including the U.S. Term Limits argument:
¶64 We therefore reject such an interpretation as contrary to the
purpose of the Election Code. Instead, we conclude that, under the
Election Code, “qualified” candidates for the presidential primary are
those who, at a minimum, are qualified to hold office under the
provisions of the U.S. Constitution.
¶65 We recognize that the Supreme Court has twice declined to address
whether Section Three—which disqualifies an oath-breaking
insurrectionist from holding office—amounts to a qualification for
office. Powell v. McCormack, 395 U.S. 486, 520 n.41 (1969)
(describing Section Three and similar disqualification provisions in
the federal constitution but declining to address whether such
provisions constitute “qualification[s]” for office because “both
sides agree[d] that [the candidate] was not ineligible under” Section
Three or any other, similar provision); U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779, 787 n.2 (1995) (seeing “no need to resolve”
the same question regarding Section Three in a case concerning the
propriety of additional qualifications for office). But lower courts,
when presented squarely with the question, have all but concluded that
Section Three is the functional equivalent of a qualification for
office. See, e.g., Greene v. Raffensperger, 599 F. Supp. 3d 1283,
1316 (N.D. Ga. 2022) (“Section [Three] is an existing constitutional
disqualification adopted in 1868—similar to but distinct from the
Article I, Section 2 requirements that congressional candidates be at
least 25 years of age, have been citizens of the United States for 7
years, and reside in the states in which they seek to be elected.”);
State v. Griffin, No. D-101-CV-2022-00473, 2022 WL 4295619, at *24
(N.M. Dist. Ct. Sept. 6, 2022) (“Section Three imposes a qualification
for public office, much like an age or residency requirement . . .
.”).
¶66 We perceive no logical distinction between a disqualification from
office and a qualification to assume office, at least for the purposes
of the section 1-1-113 claim here. Either way, it would be a wrongful
act for the Secretary to list a candidate on the presidential primary
ballot who is not “qualified” to assume the duties of the office.
Moreover, because Section Three is a “part of the text of the
Constitution,” assessing a candidate’s compliance with it for purposes
of determining their eligibility for office does not improperly “add
qualifications to those that appear in the Constitution.” U.S. Term
Limits, 514 U.S. at 787 n.2. Doing so merely renders the list of
constitutional qualifications more complete.
¶67 Nor are we persuaded by President Trump’s assertion that Section
Three does not bar him from running for or being elected to office
because Section Three bars individuals only from holding office.
Hassan specifically rejected any such distinction. 495 Fed. App’x at
948. There, the candidate argued that even if Article II “properly holds him ineligible to assume the office of president,” Colorado
could not “deny him a place on the ballot.” Id. The Hassan panel
concluded otherwise. Id. In any event, the provisions in the
Election Code governing presidential primary elections do not
recognize such a distinction. Rather, as discussed above, those
provisions require all presidential primary candidates to be
constitutionally “qualified” before their names are added to the
presidential primary ballot pursuant to section 1-4-1204(1).
¶68 Were we to adopt President Trump’s view, Colorado could not
exclude from the ballot even candidates who plainly do not satisfy the
age, residency, and citizenship requirements of the Presidential
Qualifications Clause of Article II. See U.S. Const. art. II, § 1,
cl. 5 (setting forth the qualifications to be “eligible to the Office
of President” (emphasis added)). It would mean that the state would
be powerless to exclude a twenty-eight-year-old, a non-resident of the
United States, or even a foreign national from the presidential
primary ballot in Colorado. Yet, as noted, several courts have upheld
states’ exclusion from ballots of presidential candidates who fail to
meet the qualifications for office under Article II. See Lindsay, 750
F.3d at 1065; Hassan, 495 F. App’x at 948; Ogilvie, 357 F. Supp. at
113.
Another key part of the majority opinion considers whether Section 3 of the 14th Amendment can be enforced without federal authorizing legislation at ¶¶ 88-107. I'll quote only the first part of this analysis do to space limitations in a Politics.SE answer.
¶88 The Electors’ challenge to the Secretary’s ability to certify
President Trump as a qualified candidate presumes that Section Three
is “self-executing” in the sense that it is enforceable as a
constitutional disqualification without implementing legislation from
Congress. Because Congress has not authorized state courts to enforce
Section Three, Intervenors argue that this court may not consider
President Trump’s alleged disqualification under Section Three in this
section 1-1-113 proceeding.11 We disagree.
11 Intervenors and their supporting amici occasionally assert that the
Electors’ claim is brought pursuant to Section Three and that the
Section is not selfexecuting in the sense that it does not create an
independent private right of action. But as mentioned above, the
Electors do not bring any claim directly under Section Three. Their
claim is brought under Colorado’s Election Code, and resolution of
that claim requires an examination of President Trump’s qualifications
in light of Section Three. The question of “self-execution” that we
confront here is not whether Section Three creates a cause of action
or a remedy, but whether the disqualification from office defined in
Section Three can be evaluated by a state court when presented with a
proper vehicle (like section 1-1-113), without prior congressional
authorization.
¶89 The only mention of congressional power in Section Three is that
“Congress may by a vote of two-thirds of each House, remove” the
disqualification of a former officer who had “engaged in
insurrection.” U.S. Const. amend. XIV, § 3. Section Three does not
determine who decides whether the disqualification has attached in the
first place.
¶90 Intervenors, however, look to Section Five of the Fourteenth
Amendment, which provides that “[t]he Congress shall have power to
enforce, by appropriate legislation, the provisions of this article,”
to argue that congressional authorization is necessary for any
enforcement of Section Three. Id. at § 5. This argument does not
withstand scrutiny.
¶91 The Supreme Court has said that the Fourteenth Amendment “is
undoubtedly self-executing without any ancillary legislation, so far
as its terms are applicable to any existing state of circumstances.”
The Civil Rights Cases, 109 U.S. 3, 20 (1883). To be sure, in the
Civil Rights Cases, the Court was directly focused on the Thirteenth
Amendment, so this statement could be described as dicta. But an
examination of the Thirteenth, Fourteenth, and Fifteenth Amendments
(“Reconstruction Amendments”) and interpretation of them supports the
accuracy and broader significance of the statement.
¶92 Section Three is one of four substantive sections of the
Fourteenth Amendment: • Section One: “No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law . . . .”
• Section Two: “Representatives shall be apportioned among the several
States according to their respective numbers, counting the whole
number of persons in each State . . . .”
• Section Three: “No person shall be a Senator or Representative in
Congress, or elector of President and Vice President, or hold any
office . . . under the United States . . . who, having previously
taken an oath . . . to support the Constitution of the United States,
shall have engaged in insurrection or rebellion against the same . . .
.”
• Section Four: “The validity of the public debt of the United States
. . . shall not be questioned.”
U.S. Const. amend. XIV, §§ 1–4 (emphases added). Section Five is then
an enforcement provision that applies to each of these substantive
provisions. Id. at § 5. And yet, the Supreme Court has held that
Section One is self-executing. E.g., City of Boerne v. Flores, 521
U.S. 507, 524 (1997) (“As enacted, the Fourteenth Amendment confers
substantive rights against the States which, like the provisions of
the Bill of Rights, are self-executing.”), superseded by statute,
Religious Land Use and Institutionalized Persons Act of 2000, 114
Stat. 803, on other grounds as recognized in Ramirez v. Collier, 595
U.S. 411, 424 (2022). Thus, while Congress may enact enforcement
legislation pursuant to Section Five, congressional action is not
required to give effect to the constitutional provision. See
Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (holding that Section
Five gives Congress authority to “determin[e] whether and what
legislation is needed to secure the guarantees of the Fourteenth
Amendment,” but not disputing that the Fourteenth Amendment is
self-executing).
¶93 Section Two, moreover, was enacted to eliminate the constitutional
compromise by which an enslaved person was counted as only
three-fifths of a person for purposes of legislative apportionment.
William Baude & Michael Stokes Paulsen, The Sweep and Force of Section
Three, 172 U. Pa. L. Rev. (forthcoming 2024) (manuscript at 51–52),
https://ssrn.com/abstract=4532751. The selfexecuting nature of that
section has never been called into question, and in the
reapportionment following passage of the Fourteenth Amendment,
Congress simply treated the change as having occurred. See The
Apportionment Act of 1872, 17 Stat. 28 (42nd Congress) (apportioning
Representatives to the various states based on Section Two’s command
without mentioning, or purporting to enforce, the Fourteenth
Amendment). Similarly, Congress never passed enabling legislation to
effectuate Section Four.
The Three Dissents
Three justices dissented, each with a separate individual dissenting opinion that was not joined by other justices.
Chief Justice Boatright (FWIW, the son of one of my former employers), summarizes his dissent as follows:
¶258 I agree with the majority that an action brought under section
1-1-113, C.R.S. (2023) of Colorado’s election code (“Election Code”)
may examine whether a candidate is qualified for office under the U.S.
Constitution. But section 1-1-113 has a limited scope. Kuhn v.
Williams, 2018 CO 30M, ¶ 1 n.1, 418 P.3d 478, 480 n.1 (per curiam,
unanimous) (emphasizing “the narrow nature of our review under section
1-1-113”). In my view, the claim at issue in this case exceeds that
scope. The voters’ (the “Electors”) action to disqualify former
President Donald J. Trump under Section Three of the Fourteenth
Amendment presents uniquely complex questions that exceed the
adjudicative competence of section 1-1-113’s expedited procedures.
Simply put, section 1-1-113 was not enacted to decide whether a
candidate engaged in insurrection. In my view, this cause of action
should have been dismissed. Accordingly, I respectfully dissent.
Justice Samour's dissent basically argues that Colorado's expedited election law proceedings don't afford Trump enough due process and also argues that Section 3 of the 14th Amendment is not self-executing (unlike the other two dissents, arguments that, while procedural are federal law rather than state law issues). This 42 page dissent ends with the following summary:
¶350 Because I cannot in good conscience join my colleagues in the
majority in ruling that Section Three is self-executing and that the
expedited procedures in our Election Code afforded President Trump
adequate due process of law, I respectfully dissent. Given the
current absence of federal legislation to enforce Section Three, and
given that President Trump has not been charged pursuant to section
2383, the district court should have granted his September 29 motion
to dismiss. It erred in not doing so. I would therefore affirm its
judgment on other grounds.
Justice Berkenkotter's dissent basically argues that Colorado's election code process isn't expansive enough to allow an insurrection clause challenge. This 25 page dissent opens by stating:
¶351 Today, the majority holds that former President Donald J. Trump
(“President Trump”) cannot be certified to Colorado’s presidential
primary ballot. Maj. op. ¶ 5. He is, the majority concludes,
disqualified from being President of the United States again because
he, as an officer of the United States, took an oath to support the
Constitution and thereafter engaged in insurrection. See U.S. Const.
amend. XIV, § 31; Maj. op. ¶¶ 4–5. In reaching this conclusion, the
majority determines as an initial matter that a group of Colorado
Republican and unaffiliated electors eligible to vote in the
Republican presidential primary (“the Electors”) asserted a proper
claim for relief under Colorado’s Election Code (“Election Code”).
See §§ 1-1-101 to 1-13-804, C.R.S. (2023); Maj. op. ¶ 57.
1 Section Three of the Fourteenth Amendment is a Civil War era
amendment to the United States Constitution that was ratified in 1868.
Its aim was to prohibit loyalists to the confederacy who had taken an
oath to support the Constitution from taking various state and federal
offices. It provides: . . .
¶352 I write separately to dissent because I disagree with the
majority’s initial conclusion that the Election Code—as currently
written—authorizes Colorado courts to decide whether a presidential
primary candidate is disqualified under Section Three of the
Fourteenth Amendment to the U.S. Constitution (“Section Three”) from
being listed on Colorado’s presidential primary ballot. Maj. op. ¶¶
62–63, 66. In my view, the majority construes the court’s authority
too broadly. Its approach overlooks some of part 12 of the Election
Code’s plain language and is at odds with the historical application
of section 1-1-113, C.R.S. (2023), which up until now has been limited
to challenges involving relatively straightforward issues, like
whether a candidate meets a residency requirement for a school board
election. Plus, the majority’s approach seems to have no discernible
limits.
¶353 To explain why the majority—to my mind—is wrong, first, I explain
the process for challenging the listing of a candidate on the
presidential primary ballot in Colorado and describe sections 1-1-113
and 1-4-1204(4), C.R.S. (2023), since those sections of the Election
Code define the scope of the district court’s authority to hear the
case below. Then, I lay out the procedural history of this case.
After that, I turn to the question of whether the district court erred
in interpreting these two statutes and consider the majority’s
analysis with respect to each. In doing so, I conclude that the
General Assembly has not granted courts the authority the 3 district
court exercised in this case and that the court, accordingly, erred in
denying President Trump’s motion to dismiss.
All three of the dissenting opinions are procedural in nature and are specific to issues related to Colorado's laws related to judicial review of the Colorado Secretary of State's decisions under Colorado's election administration laws (two analyze this from a state law perspective and one does so from a federal law perspective).
None of the dissenting justices dispute the Colorado Supreme Court's resolution of the federal Insurrection Clause issue on the merits. In other words, none of the dissents dispute that the facts presented to the trial court are consistent with the possibility that Trump participated in an insurrection, and none of them dispute that the insurrection clause applies to Trump.
As another source explains: "Two of the three dissenting justices did so on the ground that Colorado state election law doesn't give the state courts the authority to decide Section 3 issues." (Hat tip to a comment of Rick Smith to another answer.)
This headline somewhat overstates the case, however, because two of dissenting justices really just held that the particular route used to decide the Section 3 issue under Colorado state election law doesn't extend to deciding Section 3 issues, not that state election law precludes Colorado's state courts from deciding Section 3 issues by any means (i.e. the dissents didn't claim that Section 3 issues are "political questions" which are beyond the competence of state courts to decide).
The third dissent by Justice Samour focused on the constitutional due process adequacy of this particular expedited court process to decide the Section 3 issue. But unlike the other two dissenting opinions, this dissent also does argue that a federal statute must authorize a process to decide the Section 3 issue, a point upon which the trial court judge and the other six of the seven justices considering the case did not agree.
Trump's Official Reaction
For balance, I note Trump's official reaction to this decision about his Presidential candidacy.
Trump said in a statement that he will appeal the ruling to the United States Supreme Court. Trump campaign spokesperson Steven Cheung responded on Trump's behalf as follows:
Unsurprisingly, the all-Democrat appointed Colorado Supreme Court has
ruled against President Trump, supporting a Soros-funded, left-wing
group's scheme to interfere in an election on behalf of Crooked Joe
Biden by removing President Trump's name from the ballot and
eliminating the rights of Colorado voters to vote for the candidate of
their choice. We have full confidence that the U.S. Supreme Court will
quickly rule in our favor and finally put an end to these un-American
lawsuits.
Timing And Next Steps
The timing of the case is influenced by the January 6, 2024 deadline for the Colorado Secretary of State to certify the primary election ballot under Colorado's election laws. The decision is stayed until January 4, 2024 to allow Trump to attempt to appeal the decision to the U.S. Supreme Court and to attempt to obtain a further stay of the proceedings from the U.S. Supreme Court, while leaving the Colorado Secretary of State two days to prepare the official Colorado GOP primary ballot if this doesn't happen by then.
If the U.S. Supreme Court grants certiorari and reviews the case, it too will be required to defer to Judge Wallace's factual findings in her trial court opinion and will also be required to treat the decisions of the Colorado Supreme Court in the case on questions of state law as correct by definition.
A U.S. Supreme Court review of the decision would be limited to questions of federal law including how the U.S. Constitution, as amended, is interpreted.
If SCOTUS denied cert, this ruling on Trump's eligibility could have collateral estoppel effect that would bind Trump in every other state.
