Experienced lawyers such as Liberty Unyielding’s Robert Franklin have criticized the Colorado Supreme Court’s ruling booting Trump off the ballot. Franklin runs through a few of the many obstacles you have to surmount to reach the conclusion the Colorado Supreme Court did, in “A Travesty in Colorado.” If you disagree with any of various conclusions by the Colorado Supreme Court, then its ultimate decision was wrong.
But there are respectable legal scholars — even non-progressives — who agree with the Colorado Supreme Court’s decision. That means it is not beyond the realm of possibility that the U.S. Supreme Court could uphold the Colorado Supreme Court’s ruling if it agrees to hear an appeal of its decision.
For the sake of balance, below is a counterpoint from a legal commentator who influenced the Supreme Court’s Twombly ruling, and believes the Colorado Supreme Court probably reached the right decision. (In the interests of full disclosure, both the commentator below, and Robert Franklin, did not vote for Trump. The National Review, which deeply dislikes Trump but views Biden’s policies as worse than Trump’s, disagrees with the Colorado Supreme Court’s decision):
In a 213‐page opinion, the Colorado Supreme Court has ruled former President Donald Trump off the 2024 state ballot citing Section 3 of the Fourteenth Amendment, which bars office to persons who having taken an official oath to support the Constitution then “shall have engaged in insurrection or rebellion against the same.”
Two factual questions that have occasioned much controversy—whether the mob actions of Jan. 6, 2021, as a legal matter constituted an insurrection and whether Donald Trump as a legal matter “engaged in” them—are addressed by the Colorado court respectively at pp. 97–103 and 103–116 of its opinion. A sample, from pp. 101–103 (citations omitted):
As the district court found, with ample record support, “The mob was coordinated and demonstrated a unity of purpose .… They marched through the [Capitol] building chanting in a manner that made clear they were seeking to inflict violence against members of Congress and Vice President Pence.” And upon breaching the Capitol, the mob immediately pursued its intended target—the certification of the presidential election—and reached the House and Senate chambers within minutes of entering the building.
Finally, substantial evidence in the record showed that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment and from certifying the 2020 presidential election; that is, to preclude Congress from taking the actions necessary to accomplish a peaceful transfer of power. As noted above, soon after breaching the Capitol, the mob reached the House and Senate chambers, where the certification process was ongoing. This breach caused both the House and the Senate to adjourn, halting the electoral certification process. In addition, much of the mob’s ire—which included threats of physical violence—was directed at Vice President Pence, who, in his role as President of the Senate, was constitutionally tasked with carrying out the electoral count. As discussed more fully below, these actions were the product of President Trump’s conduct in singling out Vice President Pence for refusing President Trump’s demand that the Vice President decline to carry out his constitutional duties.
In short, the record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable definition, this constituted an insurrection….
In August I argued that even though William Baude and Michael Stokes Paulsen “have made a powerful intellectual case for their originalist reading” of Section 3, it doesn’t follow “that the Supreme Court will declare itself convinced and disqualify Trump.” It could avail itself of numerous off‐ramps, many of which do not require resolving the factual issues about Trump’s role in the Jan. 6 events….
B. Kenneth Simon Chair in Constitutional Studies Ilya Somin is one who believes Section 3 does apply, and he applauds the new Colorado decision and says he hopes the Supreme Court affirms it . On the argument that Trump has been ruled an offender without criminal‐style process, Somin argues that 1) the Due Process clause applies to deprivations of life, liberty, and property, and courts have not held that candidate disqualification is any of these things; and 2) Trump did receive due process in that he was given ample chance to contest the issue during the Colorado proceedings.
Of the above-cited legal scholars, Michael Paulsen is a conservative law professor who hates Trump. William Baude is a slightly-right-of-center law professor who hates Trump. Ilya Somin is a libertarian law professor who hates Trump and is passionately pro-immigration, unlike Trump.
