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Media must stick to the facts about Colorado Supreme Court decision to ban Trump from the ballot

Conservatives were behind the legal challenge, due process was provided during the trial, and finding Trump ineligible for the presidency does not require a conviction for insurrection

Written by Zachary Pleat

Published

News organizations have a duty to get specific facts correct in their coverage of the explosive news that the Colorado Supreme Court has ruled former President Donald Trump ineligible to serve as president under Section 3 of the 14th Amendment for “overt, voluntary, and direct participation in the insurrection” on January 6, 2021. These facts include that Republican voters — not Democrats — were behind the challenge to Trump’s candidacy and conservative legal theorists supported it; that the 14th Amendment’s prohibition of insurrectionists from serving in federal office requires no conviction and is self-executing; and that Trump received proper due process throughout the district court trial and Supreme Court hearing.

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  • Colorado Republican primary voters were the driving force behind the challenge to Trump’s ballot qualifications, and conservative legal theorists supported it

    • Six Colorado voters — four Republicans and two independents — sued to disqualify Trump from the primary ballot to ensure only “qualified candidate[s]” could receive votes. The New York Times reported that these voters “argued that Mr. Trump’s presence on the Republican primary ballot would harm them by siphoning support from their preferred candidates and, if he won the nomination, by depriving them of the ability ‘to vote for a qualified candidate in the general election.’” [The New York Times, 12/19/23]
    • Multiple conservative legal experts and scholars have argued that Trump is disqualified from the presidency. J. Michael Luttig, who co-wrote an essay in The Atlantic titled “The Constitution Prohibits Trump From Ever Being President Again,” formerly worked in the Reagan White House counsel’s office, clerked for conservative judges (including former Justice Antonin Scalia), and was appointed to the 4th U.S. Circuit Court of Appeals by President George H.W. Bush. Two conservative law professors who published a paper concluding that Trump is ineligible to serve as president, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, are both “active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.” [The Washington Post, 7/2/98; The Atlantic, 8/19/23; The New York Times, 8/10/23]

  • Section 3 of the 14th Amendment is self-executing, requires no conviction, and applies to both insurrectionists and people who have “given aid or comfort” to insurrectionists

    • The text of Section 3 of the 14th Amendment makes no mention of a conviction. The text reads: “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.” [United States Congress, accessed 12/20/23]
    • J. Michael Luttig and Laurence H. Tribe: “The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again.” They continued in their Atlantic essay, citing Trump’s efforts to overturn the 2020 presidential election: “Both of us concluded some years ago that, in fact, a conviction would be beside the point. The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.” [The Atlantic, 8/19/23]
    • William Baude and Michael Stokes Paulsen argued that “Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress.” Their paper’s abstract adds, “It can and should be enforced by every official, state or federal, who judges qualifications.” [University of Pennsylvania Law Review, Vol. 172, 8/14/23]
    • Baude and Paulsen also explained that Section 3 “in particular … disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.” The abstract adds, “Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as ‘aid or comfort.’” [University of Pennsylvania Law Review, Vol. 172, 8/14/23]

  • Trump was afforded due process in the Colorado legal decisions

    • Trump’s team called on seven witnesses during a weeklong Colorado district court trial. According to The New York Times, Trump’s witness list consisted of former Defense Department chief of staff Kashyap Patel, former campaign spokesperson Katrina Pierson, Republican activist Amy Kremer, Thomas Van Flein, who is the chief of staff to Rep. Paul Gosar (R-AZ), Colorado Republican Party treasurer Tom Bjorklund, Rep. Ken Buck (R-CO), and law professor Robert J. Delahunty. [The New York Times, 12/19/23]
    • Colorado Newsline reported that the district court case included “more than 30 hours of evidentiary proceedings, witness testimony and closing arguments.” [Colorado Newsline, 11/17/23]
    • The district court verdict was appealed by both sides to the Colorado Supreme Court, which held a two-hour hearing during which Trump’s team was able to make its case. [Colorado Newsline, 12/6/23]
    • The Colorado Supreme Court’s ruling concluded that the legal process that resulted in Trump’s barring from the primary ballot “provide[s] adequate due process.” [The Supreme Court of the State of Colorado, 12/19/23]