February 24, 2024

On December 19th, a 4–3 majority of Colorado’s Supreme Court ruled that the former President Donald Trump is barred from holding office again because of his role during the January 6th riot at the Capitol. This led to at least seven deaths and dozens of injuries. Similar suits are pending in other states. The Colorado court found that, according to Section 3 of the Fourteenth Amendment, Trump “engaged in insurrection” and is therefore ineligible to serve in any federal, civil, or military position. The ruling did not address the general election, but directed the Colorado secretary of state to leave Trump’s name off the ballot for the Republican primary on March 5, 2024. The case is expected to go before the U.S. Supreme Court, which has a conservative majority. (The Colorado court put its ruling on hold until next month to allow for Trump’s legal team to file an appeal.) To understand how the Supreme Court might approach the case, I recently spoke by phone with Richard H. Pildes, a professor of constitutional law at New York University and an expert on election law. During our conversation, which has been edited for length and clarity, we also discussed what the dissents in the Colorado decision suggest about the case’s potential weaknesses and whether the results of the federal case against Trump for attempting to interfere with the transfer of power after the 2020 election will affect his ability to remain on the ballot. I thought it was a serious legal question. Even though I teach quite a lot about the Fourteenth Amendment, I had never focussed on Section 3, because obviously it hadn’t been an issue since the aftermath of the Civil War. I was persuaded by the early academic writing that was done on this that it was a question that had to be taken seriously, and that was well before the more recent academic writing that got a lot of attention, particularly the article that Will Baude and Michael Paulsen wrote. I also thought that, because it raised a lot of novel issues, it was going to be a complicated question that would inevitably be pursued if Trump ran again. The Colorado decision was not unforeseeable, but it was also something of a surprise given that several state courts had confronted the issue and had decided that they couldn’t address the merits. But they did not reach the same conclusion here. The prior courts had different bases for not reaching the same conclusion. One basis, seen in the Arizona Supreme Court and the Michigan Court of Appeals, was that the state procedures for determining if a candidate was qualified to be on the ballot weren’t designed for the kind of complex, factual legal questions, in the absence of a criminal conviction. These procedures were designed for fairly straightforward qualification questions like: Has the person met the age-limit requirement? Is the person a citizen? But the novel issues that were presented with this case were not ones that those state election-code provisions were designed to address. Another state court, this one in Minnesota, reached the conclusion that because this involved only the primaries, which are basically the party choosing who it wants to put forward as a candidate, these provisions didn’t apply. They apply only in the general-election context. None of these other cases, by the way, reached the merits of the substantive issues that the Colorado Supreme Court addresses once it gets past those kinds of procedural issues. The Colorado Supreme Court was divided 4–3, mostly—or, really, entirely—on process-oriented issues. Those divisions reflect some of what we were just discussing, which is whether the Colorado procedure, which is a special procedure under the state election code for determining whether candidates are qualified, is appropriate for the kinds of questions that have to be addressed here. These procedures in Colorado, as in most states, are very time-compressed. The majority of the court concluded that these procedures are still adequate to address this issue. Then you get to the substance. Interestingly, the defense really did not engage on the substantive questions, but the substantive questions are: Was January 6th an insurrection? Did President Trump engage in that insurrection, to the extent that case hinges in part on the statements he made? Are those statements within the protection of the First Amendment? And the majority, of course, answered yes, this did constitute an insurrection. Yes, he did engage in the insurrection. No, his statements are not protected under the First Amendment. Yes. But that was in the context of saying the process here wasn’t adequate to reach that conclusion in the absence of these other facts. In other words, this would not be hard as a matter of process if Trump had been convicted of insurrection. It would be very much like simply saying someone doesn’t meet the age requirements. But I think the dissent you mention is arguing that, because we don’t have that here, this requires a fuller process than is available under the Colorado election code. Part of what that dissent argues—and this has always been an issue about this provision of the Fourteenth Amendment—is, in the absence of a criminal conviction, there has to be a congressional statute that specifies what the procedures are to enforce the Section 3 disqualification provision.