At its core, the Colorado lawsuit trying to keep Donald Trump off the 2024 ballot involves a clash between constitutional textualism and voter empowerment.
If you simply read the 14th Amendment, you will understand the argument that Trump should be disqualified from serving as president again. Section 3 of the amendment states that nobody who has taken an oath to support the Constitution should “hold any office” in the United States if that person has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” On Jan. 6, 2021, of course, Trump encouraged a mob that later attacked Congress, and he praised the attackers that day and afterward.
There are important legal technicalities, including a debate over whether the authors of the amendment intended for the word “officer” to describe appointed officials rather than elected ones. But many legal scholars, including some conservatives, have concluded that the amendment applies to Trump. “The ordinary sense of the text” and “the evident design to be comprehensive” indicate that it bars Trump from holding future office, William Baude and Michael Stokes Paulsen, who are members of the conservative Federalist Society, concluded in a recent law review article.
The clearer philosophical argument against the lawsuit is democratic rather than technical: If the American people do not believe Trump is fit to be president, they can vote against him next year. For that matter, the Senate, an elected body of representatives, had the power to convict Trump during the impeachment trial over his Jan. 6 actions and bar him from future office, and it did not do so.
Now, though, the seven justices of the Colorado Supreme Court (in a 4-3 vote, no less) have decided that Trump cannot appear on the state’s primary ballot. Lawyers are asking other courts to make similar decisions (as this Lawfare page tracks). Ultimately, the nine justices of the U.S. Supreme Court are likely to decide the case.
Were they to bar a leading candidate from running for president, it could disenfranchise much of the country. It would in some ways be “a profoundly anti-democratic ruling,” as our colleague Adam Liptak, who covers the Supreme Court, said on “The Daily.” As Adam explained:
Donald Trump is accused of doing grave wrongs in trying to overturn the election. But who should decide the consequences of that? Should it be nine people in Washington, or should it be the electorate of the United States, which can, for itself, assess whether Trump’s conduct is so blameworthy that he should not have the opportunity to serve another term?
The lawyers making the case against Trump have a response to this. For one thing, the Constitution already restricts the voters’ judgment in other ways, as Ciara Torres-Spelliscy, a law professor at Stetson University, told us. Nobody under the age of 35 can become president, nor can Barack Obama or George W. Bush again, because both have served two terms. And a judge in New Mexico last year barred a county commissioner from holding office because of his role in the Jan. 6 attack.
For another thing, Trump may represent a threat to the national interest that no politician in decades has. He has encouraged violence, described his critics as traitors, lied constantly, used the office of the presidency to enrich himself, promised to target his political rivals for repressions and rejected basic foundations of American democracy. He is, according to this argument, precisely the kind of autocratic figure whom the founders wanted the Constitution to prevent from holding power even if voters felt otherwise in the moment.
These will be the terms of the debate in coming weeks.
Commentary on the case
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“The Colorado Supreme Court just decided that the U.S. Constitution still matters,” John Avlon argues for CNN. “The 14th Amendment was put in place to use in moments like this.”
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Anastasia Boden of the Cato Institute calls the Colorado ruling “a good-faith attempt to grapple with a vague constitutional provision.”
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Michael Mukasey has argued in The Wall Street Journal that the provision doesn’t apply to Trump. “If Mr. Trump is to be kept from office, it will have to be done the old-fashioned way, the way it was done in 2020 — by defeating him in an election.”
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“Section 3 of the 14th Amendment should not be used to prevent Americans from voting to elect the candidate of their choice. The best outcome, for the court and the country, would be for a unanimous court … to clear the way for Trump to run,” Ruth Marcus writes in The Washington Post.
Times coverage of the case
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The Supreme Court could have a profound impact on the 2024 election beyond the Colorado case. The justices are already reviewing an obstruction-related case concerning Trump and could rule on his claims of executive immunity. “In this cycle, the Supreme Court is likely to play an even larger role than in Bush v. Gore,” one expert told The Times.
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Trump’s rivals in the Republican presidential primary have bemoaned the ruling, Maggie Haberman reports. So far, Trump’s legal troubles have helped him raise money and grow his support.
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Legal challenges to Trump’s eligibility are pending in at least 16 other states. Maine’s secretary of state is expected to rule on a challenge there in the coming days.
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Democrats are again hoping American institutions can work to stop Trump, Reid Epstein writes.
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President Biden said it was “self-evident” that Trump had supported an insurrection, but that it was up to courts to decide whether he should be on the ballot.
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Late-night hosts joked about the ruling.
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