The Supreme Court’s Colorado Ballot Decision Was a Mistake Commentary
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The Supreme Court’s Colorado Ballot Decision Was a Mistake

On February 28, an Illinois judge ruled that disgraced ex-President Donald Trump is disqualified from office under Section 3 of the Fourteenth Amendment, the Insurrectionist Disqualification Clause. Five days later, the U.S. Supreme Court, determined to avoid the overwhelming evidence that Trump engaged in insurrection, invented an exception to Section 3—applicable only to federal candidates, such as Trump—to rule in his favor. That’s an error of historic proportions and a sham.

Let’s start how the Illinois judge did, but the Supreme Court Justices didn’t—with the facts and the law. On January 6, 2021, Trump incited and facilitated a violent assault on the U.S. Capitol that defeated federal law enforcement, conquered the seat of our national government, nearly assassinated the vice president and key congressional leaders, and blocked Congress from certifying his electoral defeat, thus disrupting the peaceful transfer of power for the first time in our nation’s history. Under Section 3 of the Fourteenth Amendment, “No person shall . . . hold any office, civil or military, under the United States. . . who, having previously taken an oath, . . . as an officer of the United States. . ., 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.”

That plain text says that Donald Trump engaged in insurrection and cannot hold the presidency. The original public understanding—what several Supreme Court Justices claim is the only way to understand the Constitution—yields the same result. In 2023, two rock-ribbed conservative law professors—leaders in the Federalist Society, committed to the methods of constitutional interpretation that conservative justices like Scalia, Gorsuch, and Thomas have preached for a generation—examined the question with open minds, starting from the law and the facts and seeing where they led. Their conclusion: Trump engaged in insurrection and is disqualified from office, and state election officials and courts have the authority and obligation to exclude him from the presidential ballot.

Likewise, every court and state official that addressed that issue—in Colorado, Maine, and Illinois—concluded that Trump is disqualified and should be excluded from the ballot. No court or official anywhere in the country ever decided otherwise. Some state courts have ruled that their state-law candidacy challenge processes do not apply to presidential candidates, but no court or official ever decided, based on the facts, that Trump did not engage in insurrection, or is not subject to Section 3. Everyone who considered this on the merits has agreed: Trump is constitutionally ineligible for the presidency.

Unfortunately, the U.S. Supreme Court did not want to face this reality or the constitutional consequences of Trump’s involvement in the January 6 insurrection. The justices spent the February 8 oral argument live-workshopping various excuses to avoid ever deciding the actual question. During the nearly three-hour argument, neither Trump’s lawyer nor any of the justices seriously disputed that Trump engaged in insurrection. How could they? Both houses of Congress have called it an insurrection. Trump’s defense lawyer (in another proceeding) said “everyone agrees” it was an insurrection. Right after the argument, Trump himself called it an “insurrection.” (He blamed it on Nancy Pelosi.) Federal judges around the country have called it an insurrection and recognized that Trump caused it. And every court that has reached the merits of a Section 3 challenge has held that Trump is disqualified.

Scrambling for a rationale to avoid the central question, the justices landed on the idea that states’ role in selecting the president does not include applying the U.S. Constitution. They worried about a “patchwork” of inconsistent ballot access decisions.

But we already have that patchwork. For better or worse, we have the Electoral College. The Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” for president. The Supreme Court has called this power “far-reaching,” and the Electoral College system is how Trump came to be president in the first place, despite losing the national popular vote in 2016. The Court has generally upheld wildly different state laws restricting voting and struck down federal legislation designed to limit states’ ability to suppress votes. Furthermore, ballot access for presidential candidates is rarely uniform; in 2024, for example, Robert F. Kennedy Jr. may not qualify to appear on all states’ ballots.

Here, the Court could have eliminated any “patchwork” of Section 3 enforcement simply by ruling on the merits—either (as every state to consider the question has found) that Trump did engage in insurrection, or (if they were brazen enough to disregard all the evidence) that somehow he did not engage in insurrection. A ruling by the Court either way would have prevented a “patchwork.” But instead, they dodged the question entirely and, in the process, rendered Section 3—an essential bulwark to protect our democracy from insurrectionists like Trump—a dead letter as applied to federal candidates.

The Court’s decision exposes the country and our democracy to precisely the danger against which Section 3 was intended to protect. As one senator explained in 1866 when advocating for the passage of this provision, “[T]he man who has once violated his oath will be more liable to violate his fealty to the Government in the future.” Trump himself has called for “termination of all rules, regulations, and articles, even those found in the Constitution,” and promised to become a dictator “for one day.”

And, if Trump wins, prepare for a third term. Sure, the Twenty-Second Amendment says that “[n]o person shall be elected to the office of the President more than twice.” But Trump has already claimed that he is entitled to a third term because “they spied on my campaign.” When Trump’s lawyers make this argument, what credibility will the Supreme Court have as he runs roughshod over our constitutional democracy?

With its ruling in Trump v. Anderson, the Supreme Court has utterly failed in its duty to uphold the constitutional mandate of Section 3 of the Fourteenth Amendment at this critical moment in history.

Ron Fein is the Legal Director of Free Speech For People (FSFP), a national non-profit organization dedicated to defending our democracy and our Constitution which has litigated multiple cases under Section 3 of the Fourteenth Amendment. John Bonifaz is FSFP’s Co-Founder and President. Ben Clements is FSFP’s Chairman and Senior Legal Advisor.

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