To disqualify Donald Trump, Colorado court relied on novel theory that is likely to be overturned

By Matthew Gagnon

On Tuesday, the Colorado Supreme Court issued a ruling that sent shockwaves through the political world. In a 4-3 decision, the court ruled that Donald Trump is disqualified from holding the office of president and will thus be removed from the primary ballot in Colorado. 

The decision makes Colorado the first state to accept a novel and, I believe, very flimsy legal theory that says the 14th Amendment legally bars Trump from serving as president of the United States. It should also be noted that each of the justices involved in this decision was appointed by Democratic governors.

I first learned of this disqualification thesis back in August, when I read the 126-page research paper that gave birth to this particular legal challenge. It was written by William Baude and Michael Stokes Paulsen for The University of Pennsylvania Law Review, and argued that Section 3 of the 14th Amendment disqualifies Trump from the presidency. The Capitol riot that took place on Jan. 6, 2021 was an insurrection, they said. Donald Trump participated in and instigated it, and therefore he is not eligible to serve as president and can not run, they concluded.

Colorado’s ruling accepted that argument, though they are to date the only jurisdiction that has done so. Notably, Maine Secretary of State Shenna Bellows is currently considering whether or not Maine will join Colorado, with a decision expected early next week. 

To examine this case, we first need to actually read Section 3 of the 14th Amendment. Here is a portion of the text of that section. It states that “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” if they “have engaged in insurrection or rebellion against the [country].”

There are three questions that we need to ask ourselves as we consider this legal argument.

The first: Does what took place on Jan. 6, 2021 meet the definition of “insurrection” or “rebellion,” as those are the things specifically listed in Section 3?

The second: If, in fact, it does, was Donald Trump a participant in the event, or did he incite or cause it to take place?

The third: Does Section 3 even apply to the office of president?

To the first question, I feel the need to make clear how disgusted with Jan. 6 I was. That kind of political violence is intolerable, and I have no sympathy for the book being thrown at any of the people who stormed the Capitol, though I will admit that I find some of the sentencing to be overly punitive. But the event was abhorrent, and I have no interest in defending it in the least bit. 

But was it an insurrection? The answer to that question is the ultimate political question, with liberals generally saying it was, and most conservatives saying it was not, just like everything else. The actual definition of the word from Merriam-Webster states that insurrection is “an act or instance of revolting against civil authority or an established government.” To my eye, repugnant as the event was, I think calling that a “revolt” is comic hyperbole. 

Let’s assume you think it was an insurrection, though. Was Trump an insurrectionist?

The problem that I have with answering either yes or no to that is that this question has not been adjudicated by anyone in a criminal court. Trump’s legal woes include cases on mishandling classified documents and “election interference,” but do not charge him with committing insurrection.

Without some kind of legal conviction that has passed through a criminal court, you can not answer that question affirmatively. To try, as Colorado does, is to leave the determination up to political actors, who will use whatever definitions they find convenient in both directions. This is a dangerous precedent.

Then there is argument three. Note the absence of the specific terms “President or Vice President” in Section 3, and instead the inclusion of the electors for that office. This is at the center of the dispute over whether any of this even applies to the office of president. Notably, the lower court ruling that Colorado’s Supreme Court overturned said that it did not apply. 

If the answer to any of those three questions is no, and I think at least two of them are, then he can not be thrown off the ballot. This is why all the other states have thus far not done what Colorado did, and why I’m sure that decision will be reversed by the Supreme Court in short order.

Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.