On Tuesday the Colorado Supreme Court issued its much-anticipated decision in Anderson v. Griswold, the case in which a group of Colorado voters is seeking to bar President Trump from appearing on Colorado’s primary ballot based upon the argument that his conduct on January 6, 2021, constituted “engaging” in an “insurrection” rendering him ineligible for the office of President under section 3 of the Fourteenth Amendment. The Colorado Supreme Court affirmed much of the trial court’s decision including several state-law procedural issues and the critical conclusion that the attack on the Capitol was indeed an insurrection and that Trump “engaged” in that insurrection but reversed the legal conclusion that because the President is not an “Officer” of the United States, the disqualification did not apply to him. The upshot is that, barring action by the U.S. Supreme Court, Trump’s name will not appear on Colorado’s Republican primary ballot.1
The Trump campaign has vowed an immediate appeal.2 While there probably is no alternative, there is the risk that doing so could result in an affirmance binding upon all courts in the country as to the federal issues. (At present the ruling is only binding in Colorado state court.) Of course, we really do need a national answer and sooner, rather than later.
So far, I have only had the chance to skim the opinions. (The vote was 4-3, with a majority per curiam decision and three separate dissents.) The Court disagreed with the positions that I have expressed that the President is not an “Officer” of the United States and that the presidential oath is not one to support the Constitution of the United States. My initial impression is that the reasoning on those two points is more pragmatic than legalistic. It reminded me of the Supreme Court’s reasoning in Moore v. Harper, 600 U.S. 1 (2023), in which the Court voted 6-3 to hold that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”3 Thus, I would not be surprised if the Supreme Court ultimately upholds the Colorado decision along these same lines.
Jay Bohn
December 21, 2023
- I have written rather extensively on the case and Section 3. See Trump Disqualification 1: Initial Thoughts on CREW Lawsuit, Trump Disqualification 2: Is the President an “Officer” of the United States?, Trump Disqualification 3: Did Trump Take an Oath to “Support” the Constitution of the United States?, Trump Disqualification 4: Did the Events of January 6, 2021, Amount to an “Insurrection”?, Trump Disqualification 5: Did Donald Trump “Engage” in the Insurrection?, Trump Disqualification 6: What Are Others Saying?, Trump Disqualification 7: Final (For Now) Thoughts, Trump Disqualification 3 Redux: Whether Trump Took an Oath to “Support” the Constitution Getting Some Attention, Courts Must (Ultimately) Decide Trump’s 14th Amendment Eligibility, Trump Wins First Round in Disqualification Fight, It is Dangerous to Rely Upon Media Explanations for Legal Issues, Michigan Follows Minnesota In Rejecting Lawsuit to Keep Trump Off Primary Ballot, and Colorado Court Rules That Trump “Engaged in Insurrection,” But That The President Is Not an “Officer of the United States,” So Trump Not Disqualified. ↩︎
- Although theoretically the U.S. Supreme Court could refuse to hear the case, I cannot imagine its refusal to do so. It is a matter of great importance, and I am aware of no other case likely to result in a merits decision any time soon. (All other decisions, such as in Minnesota and Michigan, have been made for procedural reasons.) ↩︎
- See my earlier post Furor Over “Independent State Legislature” Ignores Constitutional Text for an explanation of the issue. ↩︎