(Update: On Jan. 4, Illinois joined more than a dozen other states in which challenges to Donald Trump’s candidacy have been filed.)
Follow the Constitution.
Many people with Democratic sympathies worry the Colorado Supreme Court’s 4-3 ruling that former President Donald Trump cannot appear on that state’s ballot will hurt Democrats more than Trump.
They fret that if the ruling is upheld by the U.S. Supreme Court — which has not yet decided whether to take up the case — Trump will use it to boost his fund-raising and keep himself at the center of attention, even as he remains in a strong position to win the Republican presidential nomination. In all likelihood, he would lose no electoral votes next November because Colorado is a state expected to go Democratic.
But the U.S. Constitution is not a document to put aside when its words are inconvenient. If Trump is found by the U.S. Supreme Court to have engaged in insurrection, the Colorado Constitution says he cannot appear on Colorado’s ballot.
This doesn’t apply across the country, although challenges similar to that in Colorado have been filed in multiple states. Colorado, unlike some other states, specifically requires candidates be qualified to hold office under the U.S Constitution before they can appear on the ballot. For example, Minnesota, where this issue also has been raised, does not have such a requirement.
A question of insurrection
There are several legal issues for the federal high court to consider in the case, Anderson v. Griswold, if, as expected, the justices agree to take it up. Perhaps most prominent is Section 3 of the post-Civil War 14th Amendment, which prohibits anyone from holding high office who has “engaged in insurrection or rebellion against” or “given aid or comfort to the enemies” of the United States, after taking a state or federal oath to uphold the U.S. Constitution.
If Trump is shown to have engaged in insurrection or rebellion or given aid or comfort to enemies of the nation, the U.S. Constitution declares he cannot hold the office of president. Some prominent conservative jurists have agreed that Trump is ineligible.
But Trump loyalists have raised a number of objections to the Colorado Court’s ruling. And perhaps the biggest question the U.S. Supreme Court will deal with is this: Who gets to be the arbiter to decide whether Trump engaged in insurrection? The Colorado Supreme Court has said he did.
In the criminal case over the Jan. 6, 2021, insurrection at the nation’s Capitol, Special Counsel Jack Smith alleges Trump engaged in conspiracy to defraud the United States, conspired to obstruct an official proceeding, obstructed and attempted to obstruct an official proceeding and conspired to “oppress, threaten and intimidate” people’s rights to vote in an election.
Smith’s charging documents do not specifically levy the charge of “insurrection” against Trump. But even so, with the U.S. Supreme Court’s decision on Friday not to fast track a decision on Trump’s claim of immunity, it’s not clear how soon the case brought by Smith will reach a final resolution. That could quite possibly happen only after appeals that finally go all the way to the U.S. Supreme Court.
Some people argue it would be divisive to keep Trump from regaining the presidency essentially by judicial fiat. There also is a worry about a patchwork of different ballots around the country, as different states rule who can be on the ballot, creating an election that some would dismiss as not legitimate.
California’s lieutenant governor on Wednesday called for exploring options to keep Trump off the ballot in that state. On Thursday, a judge ruled against a similar effort in West Virginia. Maine’s secretary of state will make a decision next week on that state’s ballot. Some Republicans in at least three states want President Joe Biden taken off their ballots.
Moreover, threats already have been made against the members of the Colorado Supreme Court, and such threats could spread.
But those aren’t constitutional issues. The Supreme Court should follow the Constitution and rule accordingly.
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This editorial is part of The Democracy Solutions Project, a partnership among WBEZ, the Chicago Sun-Times and the University of Chicago’s Center for Effective Government. Together, we’re examining critical issues facing our democracy in the run-up to the 2024 elections.
