Colorado Supreme Court Unconstitutionally Kicked Trump Off the Ballot

December 19, 2023 11:18pm

The Colorado Supreme Court issued its decision in Anderson v. Griswold today. The state's high court concluded that Donald Trump's connection to the January 6th riot at the U.S. Capitol constituted an insurrection and thus made him ineligible for the presidency based on Section 3 of the 14th Amendment. The court ordered Donald Trump to be removed from Colorado's Republican primary scheduled for March 5th.

All seven Colorado Supreme Court justices were appointed by Democrat governors. But even with that fully partisan Supreme Court, it was a 4-3 decision. A 4-3 decision has the same legal effect as a 7-0 decision. But it indicates the case is not the slam dunk, anti-Trump victory the Democrats are celebrating it as. That three of the seven Democrats on the court did NOT believe Trump should be removed shows how weak the argument that he's ineligible really is.

When the violence at The Capitol happened, and for months afterwards, everyone called it a "riot." Even the journalists posing as activists in the propaganda press called it a riot. But then all of a sudden that changed. The Democrats and the media - my apologies for being redundant - stopped calling it a riot and started calling it an insurrection. Why? Because some Leftist Democrat think tank came up with the idea that if January 6th was an insurrection, then the 14th Amendment could be used to disqualify Donald Trump from ever serving in office again. So the first time I heard the word "insurrection" used, I knew the Democrats would try a specious 14th Amendment claim to remove Trump from the 2024 ballot. No, I'm not a prophet. It was just that easy to see the legal tactic they were brewing. I wrote about that possibility in my blog on November 18, 2022.

The court removed Trump from the ballot only for the primary election not for the general election. That matters because even if Trump doesn't appear on Colorado's presidential primary ballot, he could still be on the general election ballot in November. A candidate can lose a state's primary but win enough delegates in other states to secure the party's nomination and then appear on the ballots of all 50 states and the District of Columbia. So this ruling, even if it stands, does not mean Trump has no chance of winning Colorado's ten Electoral College votes in November's general election. But having lost Colorado in both 2016 and 2020, it is safe to say he wouldn't win it next year even if he is on the ballot. But I am certain the U.S. Supreme Court will overturn Colorado’s blatantly partisan attempt to remove Trump from the ballot. And there are many reasons why.

The January 6th riot at The Capitol was stupid. It was illegal. And it was pointless. But it was not an insurrection. "Insurrection" is not some nebulous word the Trump-haters get to throw around in pursuit of disqualifying him from ever holding office again. Under the law, insurrection is a very specific crime. It is a violation of Title 18 U.S. Code Section 2383. But violating that law was not included in ANY of the 91 charges against Trump. Why not? Because not a single prosecutor believed Trump's actions vis a vis the January 6th riot violated that law. Why not? Because he didn't engage in insurrection!

So on those grounds alone, the U.S. Supreme Court should invalidate Colorado's decision. But there are other reasons also. Words matter in the law. Details matter. When U.S. Supreme Court justices consider the EXACT verbiage of the Constitution, the exact verbiage of the law, and the exact facts of the case, there is no way an impartial judge could possibly support what the bitterly partisan, yet divided, Colorado Supreme Court just did.

The 14th Amendment doesn't apply to the President. Seriously. If you examine the exact words of the Constitution, it is quite clear the presidency is not included on either side of the 14th Amendment's disqualification clause. It doesn't apply to a person even if he engaged in insurrection while President. And it doesn't prevent a person who engaged in insurrection from serving as President. How can that be?

Section 3 of the 14th Amendment says, "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

Was Donald Trump a member of Congress? No. Was Donald Trump an officer of the United States? No. Was Donald Trump a member of any State legislature? No. Was Donald Trump an executive or judicial officer of any State? No. So the 14th Amendment doesn't apply to Donald Trump! The only position in government Donald Trump has ever held was President. And the President does not take an oath to "support the Constitution".

The Founders who wrote and ratified the Constitution of the United States included verbiage that required an oath for federal and state officials. But the specific wording of such oaths was only specified for the President. Specific wording for oaths for all other positions was not included. So the First Congress, in its very first act, specified the wording for Senators and Representatives. This is what they required by law: "I, [name], do solemnly swear or affirm that I will support the Constitution of the United States.” That oath was used for all federal officials except the President.

The wording of the required oath has changed many times since that first act of Congress. Since 1966, as prescribed in Title 5, Section 3331 of the United States Code, the wording is, "I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” That is the oath for all federal government officials EXCEPT the President. The President has a different oath; the one prescribed in the Constitution itself.

That Presidential oath (Article II, Section 1, Clause 8) is "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Did you notice its specific words? The oath for President is to "preserve," "protect," and "defend" the Constitution of the United States. Nowhere in that oath does the word "support" appear.

Article VI, Clause 3 says, “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Notice the word "support" is required.

Then, after the Civil War when the 14th Amendment was written, discussed, and passed in the U.S. House and Senate; and was then discussed, and ratified by 3/4 of the states, specific words were used. They were not willy-nilly thrown together. They were used with very deliberate intent. They were carefully chosen to describe and put into effect via the Supreme Law of the Land, the intent of both the national and state legislatures. And what word was not included in it? The word "support."

That the President is not subject to 14th Amendment disqualification is further supported by the Constitution never referring to the President as an "officer of the United States." Indeed it implicitly states the President is NOT an "officer of the United States." Article II, Section 2, Clause 2, states the President shall have power to appoint "ambassadors, other public ministers and consuls, judges of the Supreme Court, AND ALL OTHER OFFICERS OF THE UNITED STATES, WHOSE APPOINTMENTS ARE NOT HEREIN OTHERWISE PROVIDED FOR, and which shall be established by Law..." This indicates the Constitution dos not consider the elected President to be an "officer."

Additionally, Article II, Section 3 says the President "shall commission all the Officers of the United States." Because the President does not commission himself but does commission "ALL the Officers of the United States," he is clearly not an "officer of the United States.”

But there's more. Article II, Section 4 says, "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." If the Constitution considered the President to be an officer, it would have said "The President, Vice President and all OTHER civil officers of the United States" or "all civil officers, including the President and Vice President." But it doesn't say either of those. It says "The President, Vice President AND all civil Officers of the United States." Clearly, the President is not "an officer of the United States" and is therefore, not subject to the 14th Amendment's disqualification clause.

Why? Because the 14th Amendment applies only to insurrectionists who were "a member of Congress," "an officer of the United States," "a member of any state legislature," or "an executive or judicial officer of any State." And what does it prevent those people from being? A "senator or representative in Congress," an "elector of President and Vice President," or "any office, civil or military, under the United States, or under any State." It does not disqualify someone from the Presidency. Sorry, Trump-haters. The Constitution means what it says not what you wish it said.

There are also other grounds for overturning Colorado's erroneous decision. A state does not have the authority to disqualify a person from the presidential ballot based on a claim that Section 3 of the 14th Amendment prohibits service as President. Why not? Because Section 5 of the 14th Amendment says, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Who has the power to enforce, by appropriate legislation, the provisions of the 14th Amendment? CONGRESS. Who else? NOBODY.

But what about precedent? Has a state court ever refused to put someone on the ballot for the presidency because the person wasn't qualified to serve? Yes. And do you know what state did it? Colorado! Yep. And the Colorado Supreme Court cited that instance in its ruling that Trump was ineligible. But the case they cited has little to do with the Trump case. The case they cited was Hassan v. Colorado.

Page 31 of today’s 133 page decision of the Colorado Supreme Court says, "several courts have expressly upheld states’ ability to exclude constitutionally ineligible candidates from their presidential ballots." The decision then went on to cite cases where courts did uphold the ability of states to exclude constitutionally ineligible candidates from their presidential ballots. Theses are the cases they cited:

1) California’s refusal to place a twenty-seven year-old candidate on the presidential ballot.

2) Illinois' refusal to place a thirty-one year-old candidate on the presidential ballot.

3) Colorado's refusal to place a naturalized citizen on the presidential ballot.

It is that Colorado case, Hassan v. Colorado that the uninformed Leftists are so excited about because Supreme Court Justice Neal Gorsuch ruled in favor of Colorado in that case. He wasn't on the Supreme Court at the time. But he ruled in that case as a member of the Tenth Circuit Court of Appeals. And the Democrats are saying Neal Gorsuch couldn't possibly reverse himself in the Trump case.

But that argument is without merit. Did you notice what that Colorado case and the other two cases had in common? Colorado refused to place a naturalized citizen on the presidential ballot. California refused to place a twenty-seven-year-old candidate on the presidential ballot. And Illinois refused to place a thirty-one year-old candidate on the presidential ballot.

The obvious commonality of those three cases is that they all had to do with the objectively obvious and provable qualifications for President laid out in the Constitution. There only three constitutional requirements to be President. Article II, Section 1, Clause 5 says, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States."

Since nobody who was a citizen of the United States at the time the Constitution was adopted is still alive today, the only requirements to be President are being a natural born citizen, being at least 35 years old, and having at least 14 years as a resident within the U.S. Those are all very obvious and very provable.

In the California case, the wannabe candidate was 27 years old. He was too young. In the Illinois case, the wannabe candidate was 31 years old. He was also too young. In the Colorado case, the wannabe candidate was a naturalized citizen not a natural born citizen. He was not eligible because he wasn't born in the United States (he was born in Guyana) .

It is that Hassan v. Colorado case the justices on the Colorado Supreme Court are misrepresenting. Page 32 of the decision says, "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. The question then becomes whether Colorado has exercised this power through the Election Code. We conclude that it has."

But let's get into some details of that Hassan v. Colorado case. Abdul Karim Hassan wanted to run for President of the United States in 2008. But as a naturalized citizen, he was constitutionally ineligible to serve. Ergo, the State of Colorado refused to put his name on the ballot. Hassan sued the State of Colorado asserting that the natural-born-citizen requirement, and its enforcement through state law barring his access to the ballot, violated the Citizenship, Privileges and Immunities, and Equal Protection Clauses of the Fourteenth Amendment.

On its face, it does seem like naturalized citizens do NOT receive equal protection vis a vis eligibility to be President. But the Constitution elsewhere says natural born citizens can't be President. End of discussion. If it was a statute that banned naturalized citizens from serving as President, that would violate the equal protection clause. But since it is the Constitution itself that bans it and not a statute, Hassan lost.

Neal Gorsuch was one of three judges who ruled against him and in favor of Colorado's right to keep him off the ballot. For what it's worth, Hassan also applied to be on New Hampshire's ballot and was denied there too; for the same reason. So he sued New Hampshire also. And he lost in the case of Hassan v. New Hampshire too. But since a sitting U.S. Supreme Court Justice wasn't involved in that New Hampshire case, nobody seems to care about it. I only know about it because when I read the Colorado Supreme Court's mention of Hassan v. Colorado, I looked up that case and read it. In researching the case, I came across the New Hampshire case too. Abdul Hassan's status as a naturalized citizen was never disputed by anyone; not even by Hassan. So Gorsuch and the other two judges had only one way to decide the case; to decide against Hassan.

But Trump's eligibility under the 14th Amendment is in dispute, albeit only by bitter partisans who are pulling out all the stops trying to prevent him from winning a second term. The Trump case is not a question of eligibility. It is a question of what qualifies as an "insurrection." And in no way, shape, matter, form, or regard do Trump's actions vis a vis the Capitol riot of January 6th constitute an insurrection.

To be clear, disqualification of a candidate based on the 14th Amendment does not require a judicial insurrection charge or conviction. But it does require the person to have engaged in insurrection or rebellion. And despite the lie being repeated so often, Trump did not. And neither did anyone else that day.

More than a thousand people have been charged with crimes for being at the Capitol on January 6th. How many were charged with insurrection? Zero. Not the President. Not anybody. Why not? Because the January 6th riot, while stupid and criminal, was not an insurrection under any sane definition. The only people calling it an insurrection are the Leftists who are trying to unconstitutionally remove someone they hate from the ballot. That includes the Democrats, most of the press, and four of the seven Democrat judges on the Colorado Supreme Court. But three judges on that court did dissent. Justice Carlos Samour wrote in his dissent, "Procedural due process is one of the aspects of America’s democracy that sets this country apart. The decision to bar former President Donald J. Trump by all accounts the current leading Republican presidential candidate (and reportedly the current leading overall presidential candidate) - from Colorado’s presidential primary ballot flies in the face of the due process doctrine.... I have been involved in the justice system for thirty-three years now, and what took place here doesn't resemble anything I've seen in a courtroom."

Justice Samour is correct. Four of the seven Colorado Supreme Court Justices made an unconstitutional and indefensible ruling based solely on the Democrat Party's hate and contempt for Donald Trump. But the U.S. Supreme Court will certainly overturn it, assuming they rule in time. Colorado's primary is March 5th. But a decision would need to be rendered by January 5th because that's the deadline for Colorado to print its presidential primary ballots.

What the all-Democrat Colorado Supreme Court did - and what Democrats in many other states are trying to do - is to remove Donald Trump from the ballot based on this phony 14th Amendment insurrectionist nonsense. But even when that effort fails, the Democrats will have benefited. All these court battles are costing Trump and the Republicans time, money, and effort that would be better spent on a campaign to reach voters rather than on lawyers to defeat these baseless and frivolous attempts to remove the leading candidate of a major political party from the ballot. That is something third-world countries do. It is not something the United States does. Shame on the Democrats for attempting it.

I do not want Donald Trump to be President again. But this effort to twist the Constitution of the United States to prevent him from being on the ballot is disgraceful. And disgusting. And dangerous. Sadly, in today's Amerika, it is par for the course.