Experts dissect key arguments in Colorado Supreme Court 14th Amendment ruling

The Colorado Supreme Court made the unprecedented decision on Tuesday evening to keep former President Donald Trump off of the state's 2024 presidential Republican primary ballot and prohibit the counting of any write-in votes for him, ruling that the former president violated Section 3 of the 14th Amendment.

In a ruling that Trump's legal team has said will soon be appealed, a majority of Colorado's seven justices wrote that the former president "engaged in insurrection," on Jan. 6, 2021, and reversed a lower court's determination that Trump could remain on the ballot because a U.S. president was not an "officer of the United States."

The decision was the first of its kind in barring Trump from a presidential primary ballot. It affirmed parts of the Colorado District Court's ruling that the Trump team sought to reverse under appeal while overturning the portions of the lower court’s ruling that plaintiffs appealed for, delivering a great blow to the former president and granting many items on the challengers' wishlist. While it was first time a disqualification challenge against Trump was upheld in Court, the Colorado Supreme Court uniquely addressed a number of key arguments that have prevailed concerning Section 3 of the 14th Amendment in the months the clause has been explored in the context of Trump's election.

But first, an aspect of the opinion that was unremarkable: the minority in dissent objected to the majority for reasons similar to why other courts have thrown out 14th Amendment challenges.

More than nine 14th Amendment challenges have failed nationwide, despite having been raised in dozens of states. Challenges have mostly been rejected because of procedural inconsistencies, questions about whether the judicial branch had power to enforce the ban and the "officer" question. None have been thrown out on the argument that the former president did not engage or incite insurrection, however.

“Almost all of those cases up until this time have been disposed of through procedural grounds ... most commonly, either because of standing of the plaintiffs or because the issue wasn't ripe to be decided,” David Becker, the director and founder of the Center for Election Innovation and Research told a group of reporters on Wednesday.

The three dissenting Colorado Supreme Court justices on Tuesday objected to their court’s majority on similar procedural grounds, and again did not specifically object to the finding that Trump engaged in insurrection.

“They ruled that there were procedural issues, specifically whether Congress had passed enabling legislation which it has not, or whether Colorado State law authorized a removal ... The three minority Justices of the Colorado Supreme Court didn't make any ruling with regard to the insurrection,” Becker added.

Findings of the CO Supreme Court

Chief Justice Brian D. Boatright, in his dissent, wrote that the "absence of an insurrection-related conviction" against Trump should have called for the case to be dismissed. He also dissented in part because Colorado’s election code has “a limited scope” and was “not enacted to decide whether a candidate engaged in insurrection,” especially on an expedited timeline.

Justice Carlos A. Samour Jr., another dissenter, said he could not rule with the majority on procedural grounds or in ruling that Section 3 was “self-executing" another widely circulated defense for Trump in this case, which means that elections officials wouldn't need special permission from lawmakers to disqualify Trump from the ballot.

The court's majority found the opposite. "The only mention of congressional power in Section Three is that 'Congress may by a vote of two-thirds of each House, remove the disqualification of a former officer who had “engaged in insurrection.' Section Three does not determine who decides whether the disqualification has attached in the first place," the majority wrote. "Our conclusion that implementing legislation from Congress is unnecessary for us to proceed."

Samour also noted that the process "flies in the face of the due process doctrine," and that the "expedited procedures in our Election Code afforded President Trump adequate due process of law."

Experts disagreed with that sentiment.

“[Samour] simply said, you know, Trump could have had more time to present more evidence,” said Mark Graber, a constitutional scholar and law professor at the University of Maryland in an interview with ABC News. “He's been given numerous opportunities to present evidence."

The Colorado Supreme Court notably reversed the lower court’s ruling that Trump could remain on the GOP primary ballot. But they also wrote that the district court “committed reversible error” through its finding that Section 3 of the 14th Amendment encompasses the office of the Presidency and someone who has taken an oath as president -- the legal grounds on which CREW’s initial challenge was rejected.

Seth Tillman, one of two conservative law professors who authored the widely cited paper that popularized the argument that Section 3's reference to "an officer of the United States" does not include the president, said he thought the "officer" issue would be one among several issues that are likely to be addressed at the Supreme Court's level.

“I think it’s an argument about which reasonable persons can disagree,” said Tillman. “That argument and others will likely be addressed in a further appeal to the U.S. Supreme Court."

Political pushback

The state Supreme Court affirmed many parts of District Judge Sarah B. Wallace’s findings, however, including that the district court did not err in concluding that the events at the Capitol on Jan. 6 constituted an “insurrection;” that the district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions; and that Trump’s speech inciting the crowd that breached the Capitol on Jan. 6, was not protected by the First Amendment.

In their unsigned opinion on Tuesday, the majority noted that they did not reach their conclusions “lightly," and indicated that the'd anticipate widespread pushback regarding their decision.

“We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach,” they wrote.

But the potential politicization of the decision still remains paramount to the case, with many arguing that the court's actions were partisan and may rile up Trump supporters ahead of a contentious 2024 presidential primary and general election cycle.

“I strongly oppose Donald Trump for the Republican nomination, but I think that this case is legally wrong and untenable,” Bill Barr, who served as Trump’s attorney general, said Wednesday on CNN. “And I think this kind of action of stretching the law, taking these hyper-aggressive positions to try to knock Trump out of the race are counterproductive. They backfire.”

The decision has been met with widespread criticism from Trump’s supporters, his 2024 GOP primary rivals and even some Democrats who have argued the move was undemocratic and that Trump’s electability should be decided at the ballot box, not through the court system.

Some legal experts have called that criticism “misguided."

“Those who would characterize this decision as 'political' or 'politics' from a liberal state supreme court are misguided. That's, of course, what the former president and his supporters will say. There could be nothing further from the truth," said former federal judge Michael Luttig on CNN. "This was a straightforward application of the 14th amendment in plain terms."