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December 19, 2023 04:21 PM UTC

BREAKING: Trump Tossed Off Colorado's 2024 Ballot

  • 30 Comments
  • by: Colorado Pols

UPDATE #2: Statement from Citizens for Responsibility and Ethics in Washington celebrates today’s ruling:

Donald Trump is disqualified from serving as president and barred from appearing on ballots for president in Colorado under the 14th Amendment, according to a Colorado Supreme Court ruling issued today in a case brought on behalf of six Republican and unaffiliated Colorado voters by Citizens for Responsibility and Ethics in Washington and the firms Tierney Lawrence Stiles LLC, KBN Law, LLC and Olson Grimsley Kawanabe Hinchcliff & Murray LLC. This is the first time a presidential candidate has been disqualified or removed from a ballot under the 14th Amendment’s disqualification clause.

The Colorado Supreme Court ruled that the president is an “officer” under the United States Constitution and that Section 3 of the 14th Amendment applies to the president, reversing a ruling by a district court in November that Trump could appear on Colorado ballots for president despite engaging in insurrection on January 6, 2021. The Colorado Supreme Court ruling also denied Donald Trump’s appeal on eleven issues, affirming that Trump engaged in insurrection and that his actions on and leading up to January 6, 2021 are not protected by the First Amendment.

“My fellow plaintiffs and I brought this case to continue to protect the right to free and fair elections enshrined in our Constitution and to ensure Colorado Republican primary voters are only voting for eligible candidates. Today’s win does just that,” said petitioner and former Republican majority leader of the Colorado House and Senate Norma Anderson. “Long before this lawsuit was filed, I had already read Section 3 of the 14th Amendment and concluded that it applied to Donald Trump, given his actions leading up to and on January 6th. I am proud to be a petitioner, and gratified that the Colorado Supreme Court arrived at the same conclusion we all did.”

—–

UPDATE: As the Washington Post’s Patrick Manley reports:

In a historic decision Tuesday, the Colorado Supreme Court barred Donald Trump from running in the state’s presidential primary after determining that he had engaged in insurrection on Jan. 6, 2021.

The ruling marked the first time a court kept a presidential candidate off the ballot under an 1868 provision of the Constitution that prevents insurrectionists from holding office. The ruling comes as courts consider similar cases in other states.

The decision is certain to be appealed to the U.S. Supreme Court, but it will be up to the justices to decide whether to take the case. Scholars have said only the nation’s high court can settle the issue of whether the Jan. 6 attack on the U.S. Capitol constituted an insurrection and whether Trump is banned from running.

—–

Disqualified.

The earth-shaking decision from the Colorado Supreme Court just announced:

In this appeal from a district court proceeding under the Colorado Election Code, the supreme court considers whether former President Donald J. Trump may appear on the Colorado Republican presidential primary ballot in 2024. A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution. [Pols emphasis] Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot. The court stays its ruling until January 4, 2024, subject to any further appellate proceedings.

Stand by for responses and analysis of next steps, with this ruling certain to be appealed to the U.S. Supreme Court. But this is a very big deal, a stunning victory for the plain wording of the U.S. Constitution.

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30 thoughts on “BREAKING: Trump Tossed Off Colorado’s 2024 Ballot”

  2. For sure. And remember, SCOTUS could kick this out by saying that this is only seeking to keep him off a primary ballot which is only the prerogative of a political party, not the state government.

    Whether he can appear on the November ballot would remain yet to be determined.

    All the same, it’s nice to see Honey Badger with his face covered in egg.

    I hope he got a nice big fat retainer because his client sees everything as contingency fee cases. You don’t win, you don’t get paid.

    1. "SCOTUS could kick this out by saying that this is only seeking to keep him off a primary ballot which is only the prerogative of a political party, not the state government."

      Not really. Both the findings of fact (the Trump engaged in an insurrection) and the conclusions of law (Sect9ion 3 of the 14th Amendment applies to him and he was granted due process in a procedurally proper consideration of the issue) are binding against him in future litigation against him anywhere in the United States under a legal principle called collateral estoppel a.k.a. issue preclusion. He can't relitigate those issues in a general election race or in another state. The reasoning of the ruling against him bars him from the primary ballot would also bar him from the general election ballot in every U.S. state (with new plaintiffs if necessary where it has already been litigated). A loss in this case is game over.

      Now, for this very reason, SCOTUS is lkely to grant cert to review the case. There are a lot of bright legal miinds at SCOTUS (and among their clerks) and this isn't lost on them. But, if SCOTUS for some reason denied cert (perhaps to keep its hands clean in a hot political fight when their own legitimacy is at issue, for a candidate they know to be a threat to the Republic even if they don't admit it) Trump will not be the next GOP nominee, nor will he ever hold any public office again.

      Of course, if SCOTUS does grant cert and reviews on the merits, in all likelihood, it rules in Trump's favor with its 6-3 ultra-conservative majority given that the Colorado Supreme Court just barely managed a 4-3 majority to kick him off the ballot with all 7 justices appointed by Democrats. SCOTUS would be bound by the trial court judge's factual findings on appeal. Also, to the extent that the Colorado Supreme Court decided questions of state law, SCOTUS is bound by that too. So, it needs a federal law reason to overrule the Colorado Supreme Court's decision. But SCOTUS could certainly find one if it wants to, and no one can second guess it if it does, even if its reasoning is dubious.

      1. Point 1:The Supreme Court could care less about its legitamacy or something unethical or even the appearance of it.

        Point 2.: If the Supreme Court does anything other than rule that Trump cannot appear on the ballot, they are saying an insurrectionist may become president. Everyone knows it was an insurrection and two courts ruled it was.

        Point 3 If the Supreme Court takes up cert and rules in favor of Trump he may engage in another insurrection without facing legal consequence.

         

  3. I wouldn't be surprised if Dave "Hold My Beer" Williams convenes a special session of the MAGA Politburo f/k/a Colorado Republican State Central Committee to ask the members to abolish the primary and award all of Colorado convention delegates to Orange Jesus.

    That would be one hell of way to say "Fuck you" to the judiciary, the secretary of state, and to the eight named RINO petitioners in the Griswold case.

    2. Williams already made the threat of withdrawing from the primary.  Williams already brought the matter to the Colorado Republican committee and got a majority to support withdrawal (but not particularly close to the 75% required by statute).   Williams supports a court case arguing for withdrawal not subject to the supermajority required by the statute. 

      With this ruling, Williams will try again. Newsweek reports "Colorado GOP Say They Will Cancel Primary if Donald Trump Isn't on Ballot"

      "This is un-American what's going on," Williams said. "I don't care if it's a Republican majority Supreme Court in the United States or if it's a Democrat majority here in Colorado, we don't feel that this is the right thing to do. If we truly care about one man one vote and protecting our rights […] let the people decide. Don't take away our vote."

      1. Off topic, but noticeable.   I finally can comment from a Windows/Firefox desktop.  Thanks for the continuing work on the new Colorado Pols environment.

      2. "Williams supports a court case arguing for withdrawal not subject to the supermajority required by the statute."

        Speaking of which …..

        Does John Eastman still represent the state GOP or have they hired someone else?

  4. Trump is off the ballot in Colorado. If SCOTUS affirms, or if SCOTUS denies cert (via collateral estoppel effects), then Trump is off the ballot everywhere. And, SCOTUS is bound on appeal by the Colorado trial judge's findings of facts in the case.

    The 4-3 ruling, that is 133 pages long, is stayed for further appeals until January 4, 2023, The four justice pre curium majority state: "¶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. 

    CJ Boatright in dissent states: "¶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."

    J Samour dissenting: Colorado's expedited proceedings don't afford Trump enough due process.

    J. Berkenkotter dissenting: Colorado's election code process isn't expensive enough to allow an insurrection clause challenge.

    1. Please explain how collateral estoppel is a reason to deny cert. 

      The fact that in one state (Colorado) he has been kicked off the ballot while in others (Michigan and Minnesota) he has been allowed to remain, is precisely why SCOTUS would have to accept the case.

      1. Collateral estoppel isn't a reason to deny cert. Collateral estoppel is the reason that Trump loses in the less likely than not case where SCOTUS does deny cert.

        Contrary decisions in other states are only binding against the particular plaintiffs in those cases (who can easily be replaced). A decision against Trump himself, in contrast, is against a party that can't be replaced in other lawsuits. Someone can refile in another state with new plaintiffs in an appropriate procedural stance, cite to a final judgment in the Colorado case (if SCOTUS denies cert) and win without having to relitigate the issue.

        As an additional point, it is worth noting that none of the dissenters disagree with the conclusion of the majority that: “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.” They are basically arguing that Trump didn’t have a sufficient opportunity to litigate whether he engaged in an insurrection or not, because of the expedited procedures involved in the Colorado Election Code.

        2. Collateral estoppel can't apply yet because there's not a final nonappealable judgment until SCOTUS rules or denies review.  I expect that other courts may be cautious about it applying it, and could embrace the dissents' position that he didn't get a full and fair opportunity to litigate it (which is BS, in my view, but it is a hook for a different court to grab onto).  I still predict that SCOTUS will take the case, but conclude it's a nonjusticiable political question.  Then there is the bird's eye view on this, which is "is this what U.S. politics has become?"

    2. Help me with these, in the event cert is denied:

      1. Is the finding that Trump is ineligible to be elected under Federal law self-executing, and he is magically erased from all US ballots? Or,
      2. Do 49 more lawsuits need to be filed? Some are already in progress, I know; maybe those would have to be refiled or need different plaintiffs.
      3. Standing for these 49 lawsuits is determined by … state law? A resident can sue? An election official can sue? A DA can sue? Someone else can sue?
      4. Officials could decline to sue? What if you’re a resident who doesn’t want Trump on the ballot, but the parties that have standing by statute refuse to sue?
      5. Judges could dismiss suits?
      6. Judges could find the issue of Trump’s eligibility irrelevant depending on state law?
      7. Legal proceedings could continue for years, variously, in different states?

      I think the simplest thing for SCOTUS to do is deny cert, and let states (fail to) sort it out.

      Another possibility: SCOTUS simply affirms the decision with the comment (paraphrasing) that elections are the business of the states.

      I think SCOTUS has a bit of a slog otherwise, as they would be unlikely to rule that facts were wrongly decided, and they would be unlikely to comment on a state Supreme Court’s ruling about state law unless they could find, for example, a federal due process issue. But on the other hand, they’ve shown zero loyalty to Trump, and with a 6-3 majority they can go unbothered about the business of returning us to the golden days of 1950 for another 25 years even with Democrat presidents.

      Or they could grant cert and rule next year (if I understand the calendar correctly, which I probably don’t).

      IANAL but I’m curious.

      1. "Another possibility: SCOTUS simply affirms the decision with the comment (paraphrasing) that elections are the business of the states."

        That would be a hoot for several reasons.

        First, it takes federalism to the nth degree.

        Second, it opens all sorts of interesting – but not unprecedented – possibilities.

        In 1860, Abraham Lincoln's name did not appear on the ballots in several southern states. (Spoiler alert: he probably wouldn't have carried any of them anyway.)

        If Trump is kept off blue state ballots and various red states reciprocate by excluding Biden, so what?

        But what happens if one, some, or all of the seven swing states exclude one of the two candidates? Fortunately, most of the seven swing states have Dem secretaries of state but what of the courts?

        Declaring elections to be the business of states raises some interesting possibilities.

  7. David French from a comment on "substack threads"

    Section 3 of the Fourteenth Amendment is undemocratic. I understand why people would be angry about that.But here's a key constitutional point … The amendment is INTENTIONALLY anti-democratic. If the authors of the amendment trusted voters not to elect insurrectionists, they never would have drafted the amendment.This is a situation the amendment was designed for—when other guardrails failed, this amendment would still stand…

  8. A quick note about Colorado’s judicial selection process, because it is being mentioned that all seven justices were appointed by democratic governors, including the three dissenters: The Governor has to pick from a slate of three nominees given to him by a nominating commission. The commission has representatives from each house district, lawyers and non- lawyers, and a mix of Dems, Repubs, and independents. Though political, it is not nearly as political as those states that elected judges. The three dissenters were all appointed by democratic governors to the supreme court, but all were original appointed as judges as the trial level by Republican governors. The selection process, which should be a model for other states (and maybe the Federal courts) does not guarantee non-partisanship, but it gives us a court with highly qualified jurists that are not beholden to a political party for their job.

  10. The original suit to bar trump from the ballot was a gigantic political mistake.  They may have had good reason for the suit  IF he had been convicted of  participatingin/ or fomenting a rebellion, but without that decision from a court of law, they have just handed this awful nightmare a powerful political argument.  And once scotus reverses, and it will I believe,  that decision will compound the effects in trump's favor.  This has been one of the dumbest political moves I've seen in my long, long life.

    1. You may be right. There is another easy way out for SCOTUS. This suit was to keep him off the primary ballot. What the hell difference does it make if he is on the PRIMARY ballot or not?

      A political party can and does make its own rules of operation subject to some very limited circumstances when the state can intrude (e.g., The Texas Democratic Party in the 1950’s had separate primaries for white and black voters. That was held to be unconstitutional, especially since in those days, the Democratic nomination was tantamount to election). If the party rule violates a fundamental right or a suspect classification, it can be successfully challenged. Short of that, they cannot and should not be regulated.

      A particular political party is not a public forum. If the DSA and the Odd Squad were to take control of the Democratic National Committee and implement a rule that requires all Democratic candidates to pledge to support communal ownership of the means of production, they can do that. (IMHO, I would that they wouldn’t do that, but they can.) 

      A different and stronger argument can be made for the general election ballot but even there, a political party gets to select its candidates for better or for worse.

      If the Republican MAGA Party wanted to nominate Donald for president and Melania (or Baron) for VEEP, who am I to say that they cannot. It wouldn’t be particularly smart of them but so what? If that ticket should win, the VEEP candidate would not be eligible to hold the office and a vacancy would exist triggering the 25th Amendment. But why should this be any different from any of the other conventions that have been stretched and snapped over the past eight years. 

       

    2. I don’t see this case as being of a particular help, or detriment, to Trump. Like it or not, he will probably be the R nominee.

      From the political viewpoint, a much bigger issue thus far for me is the failure of the Biden campaign to tell a convincing story about how good the economy actually is. Seems to me that his campaign is making similar errors to what the Hillary campaign did / didn’t do in 2016. The campaign took the rust belt states for granted and ended up losing WI, MI, PA. The Hillary campign also ignored talking heads like Limbaugh, Hannity, Carlson who ended up being able to greatly identify her as a candidate.

      The Biden campaign did drop “Biden-nomics.” But so far, the Fox, Newsmax, MAGA, arguments that the economy is crumbling are getting far too much airplay without much rebuttal. Finally, also remembering the re-election campaign in 2014 of “Senator Uterus,” if I was a candidate, I would never allow any of the inside-the-beltway, no-mind, consultants anywhere near my campaign.

       

      1. I can think of all kinds of snark the gop can throw at him if he starts bragging about the economy.  Inflation?  The deficit? Interest rates?  The "economy" is not a good place for the Dems to rest.

        1. The deficit is Biden's fault?

          Quick and easy solution to the deficit. Repeal the Large and Beautiful (Trump's words, not mine) 2018 tax cuts.

           

    3. I was thinking something similar but I'm honestly skeptical. Nothing has or will change because of this. For starters, Trump was not going to win Colorado anyway so that alone changes nothing. Either way, Trump wil almost certainly be the GOP nominee and let's bring out the worst case scenario: we'll probably have another Trump administration coming 2025 (unless national Democrats can stop being idiots and get their sh!t together). Again, nothing has changed because of this. If Trump's legal troubles, his henchmen getting dragged over the coals since 2020, and the fact that Trump is ok with insurrections and installing a autocracy wasn't enough for voters to run away and never turn back, then at the point it's clear that voters never had a problem with Trump or his politics, they just dislked the way he did it. Considering that swing state voters so decisively punished MAGA Republicans back in 2022 but are more than happy to back the MAGA man himself is just more evidence that Trumpism is hated by voters but not Trump.

      What's worse, there has been a growing consensus among obervers, pundits, researchers and scholars that a 2nd Trump presidency will almost 100% be more dysfunctional, anti-democratic, filled with fringe figures appointed to influential posts, and much more polarising and hateful. I know I'm just a "lefty" with bias here, but I still it find so hard to imagine voters seeing the bastshit insanity of MAGA Republicans in 2022 and noping the hell out of there are the same voters who are more than happy to vote for the originator of MAGA and expect him to not be as unhinged as the MAGA chuds he created and leads.

      Before my commnet feels too depressing, even if Trump does win in 2024, it will a hollow victory since it will not be becasue most voters were clamoring to have him back or because he's actually popular. It will be becasue many voters sat out the election or voted third-party. Considering this the case, pro-choice fervor along with anti-Trump and anti-Republican sentiment will not translate to it being a fun time for them for the next couple years after that. My only concern will be if voters begin becoming complacent and normalizing extremist and facist leaders to the point that future GOP candidates will make Trump look like a stable and all-loving hippy (sorry…I tried to end it positively but I think we'll in for a a very bad time starting 2025 regardless).

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