Following the Colorado Supreme Court’s ruling that excludes Donald Trump from the vote in the state’s primary and general elections, The Conversation US asked Mark A. Graberregent professor of law at the University of Maryland Carey Law School, what this all means — for Trump, for ordinary Americans, and for the 2024 election.
The key questions relate to Section 3 of the 14th Amendment to the US Constitution. This provision prohibits people from holding federal and state offices if they took an oath to uphold the Constitution and then violated that oath by participating in an insurrection.
Graber filed a amicus brief this technically supported voters seeking to block Trump from the ballot, but focused specifically on the history of Section 3 of the 14th Amendment. Some of Graber’s scientific works, including one journal article and one bookwere cited in the court’s decision.
The court’s decision triggered a nationwide outcry – both to support its conclusions and to oppose them. And many other states could have to make similar decisions.
Supporters of the Court’s decision say it correctly determined that Trump took an oath to uphold the Constitution at his inauguration and then participated in an insurrection on January 6, 2021 and was therefore not qualified to serve as president. Critics of the decision say judges are trying to usurp voters’ rights choose the president they want.
Why are people so interested in this decision?
Someone had to go in the water. I think the last thing anyone wanted was for Trump’s first successful disqualification to take place a month before the election. Now the question is on the table. It wouldn’t surprise me if other states discover the water isn’t that bad and disqualify Trump. Then we can get answers before people start voting in the primaries and general elections.
From there, what happens procedurally?
One answer – and I doubt this will happen, but it might actually make sense – is that Trump doesn’t bother to appeal. He doesn’t need delegates from Colorado to secure the Republican nomination. He doesn’t need the votes of Colorado voters to win the presidency. And appealing is time-consuming and expensive.
Dating back as far as Judicial Power Act of 1789federal laws allow certain types of decisions of the highest state courts to be appealed directly to the United States Supreme Court.
Everyone expects the Supreme Court to get involved. But no one thinks this is mandatory. If appealed, the court could refuse to hear the case or accept it.
Trump could therefore appeal. If he does not appeal or if the Supreme Court refuses to take up the case, then he is disqualified in Colorado. Maybe more trials would happen, and he would be on the ballot in some states and not on the ballot in others. The Supreme Court could also say it would consider taking up a subsequent case if a conflict between state court rulings arises.
What if the Supreme Court accepted the case?
Most people think there are two options for the outcome, but I think there are three.
The simple option is that the Supreme Court could decide that yes, Trump is disqualified under Section 3 of the 14th Amendment. It cannot then appear on the ballot paper anywhere.
The second option is for the Supreme Court to rule that he is not disqualified. But the court could make two different types of decisions in this direction.
This could overturn the Colorado Supreme Court’s decision on the merits, holding that Trump did not engage in insurrection within the meaning of the 14th Amendment. This would mean that no further proceedings are permitted – no state can challenge it, and Congress cannot challenge it.
Or the Supreme Court could overturn the decision on a technicality – perhaps Trump is disqualified, but Section 3 of the 14th Amendment does not apply to a primary election, or Congress should intervene, or one or the Another detail that could lead to another trial eventually. could succeed.
That makes two options. What is the third?
There is a third major option if you look at how the Framers understood how the 14th Amendment worked. THE report of their debates shows that they thought this would be implemented in the states first.
Part of the story comes from the fact that people in the 19th century thought differently from us. Not only did they come to different conclusions, but they also understood the structure of government in entirely different ways.
Today we hear that many laws and standards cannot be established at the state level and must be uniform across the country. But back then, people were less afraid of diversity. So they were willing to let the states vary more. If uniformity were necessary, or if Congress did not approve of what the states were doing, Congress could pass more general legislation.
So the court could say, “Colorado disqualified Trump.” That’s OK for Colorado. In other states, you can do what you think is best. And Congress, if you don’t like this hodgepodge, pass a law to standardize it.” I think this is the least likely outcome, but it may be the one that fits the story best.
The Colorado Supreme Court affirms that there need not be a criminal conviction of any kind, nor an indictment conviction, for this provision of the 14th Amendment to apply. Does it matter that Trump hasn’t been convicted of any crimes yet?
The court is absolutely right.
There are different ways to understand this point.
The first is that section 3 sets out a qualification to be president, just as be born an American citizen. So the Colorado Secretary of State would make the same decision if there was evidence that Trump was born Latvian. Being born in Latvia is not a crime. But that’s a disqualification.
The second aspect is that prosecutors charge people with crimes for various reasons. They may have decided to sue Trump for other actions. The absence of a conviction does not mean that an action did not take place.
Or imagine that Trump was still president and the attorney general didn’t want to prosecute because the attorney general is in cahoots with Trump. An individual can always take legal action.
Right after the Civil War, many people were disqualified under this provision, but none of them were convicted of anything.
Why does a state court rule on a federal constitutional provision or requirement?
Is capital punishment constitutional? Death penalty trial begins in state court. It bubbles up until it reaches the state Supreme Court and then the federal courts. Same with abortion.
States decide constitutional questions at any time. Indeed, almost all constitutional questions are first decided by state courts.
What does this mean on a larger scale for the 2024 elections?
We are not at the end. We just came out of the opening. The meaning could therefore be almost zero. The U.S. Supreme Court could overturn the Colorado decision and declare all of these lawsuits wrong. So we have an interesting academic discussion, but nothing changes.
Or we could have a very long debate about it. And at some point, for example, a number of prominent Republicans might conclude that Trump really is an insurrectionist, and that starts to play a serious role in the Republican primaries.
It is still too early to know if this is an incident or an earthquake, or something in between.
People are scrambling to find out what they are going to do. The Republican Party of Colorado has just announced that it consider a caucus rather than the primary to avoid needing Trump’s name on a state ballot — at least for the primaries. People maneuver.
How does it feel to be cited in a decision like this from the Colorado Supreme Court?
I am an academic. Favorable quotes are 100 on a 100-point scale. Unfavorable quotes are 99. No quotes are zero.