The ludicrous legal reasoning of Colorado’s supreme court
Conn Carroll
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The same libertarians who claim the president of the United States has unlimited power to parole an infinite number of illegal immigrants into the country are now also defending the Colorado Supreme Court’s decision to kick former President Donald Trump off the state’s presidential ballot.
George Mason University law professor Ilya Somin argues that a criminal conviction for insurrection is not necessary for invocation of Section 3 of the Fourteenth Amendment because our legal system has long recognized that the same events can give rise to both civil and criminal liability.
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He cites the example of O. J. Simpson, who was famously acquitted in criminal court for the murder of Nicole Brown Simpson and Ron Goldman but was later held liable in civil court for their deaths, resulting in $33.5 million in damages.
This is terrible legal reasoning for two reasons.
First, Somin forgets entirely about jurisdiction. Both criminal charges and civil claims must be brought in a court that has jurisdiction over the act in question. This is why Simpson was tried for murder by a California court and not a court in Arizona. Similarly, civil claims must also have a nexus to the court where they are brought. This is why the civil case against Simpson was brought in California court, not Texas. A Texas court would have no jurisdiction to hear a civil claim stemming from a murder in California.
Jurisdiction is important for many reasons, one of which is it prevents plaintiffs from forum shopping. Someone who slips and falls in Georgia shouldn’t be allowed to apply Oregon’s negligence standard to a Georgia business. Also, an Oregon jury shouldn’t be allowed to pass judgment on a Georgia defendant.
Here in the Trump case, none of the events of Jan. 6 have any nexus with Colorado. The events happened entirely in Washington, DC. Why should a Colorado court be the one to decide if what Trump did was insurrection? If literally any court in the nation was allowed to adjudicate such a claim, there would be a race to get a favorable ruling by both sides in the most favorable jurisdiction. Is that really what the authors of the 14th Amendment intended? Is that how a rational legal system is supposed to work?
Of course not.
Somin’s criminal-civil distinction also fails because, under the Colorado Supreme Court’s own reasoning, a civil verdict isn’t necessary at all. Any secretary of state in any jurisdiction could simply declare someone they didn’t like was an “insurrectionist” and kick them off the ballot.
None of the Confederates denied office after the Civil War had a civil trial to determine if they were insurrectionists. One was denied office under Section 3 by a governor. Another by a county commissioner. Another by the Postmaster General.
Accepting the Colorado Supreme Court’s ruling would unleash chaos. Any Republican secretary of state throughout the country could disqualify anyone from office for supporting the Black Lives Matter riots. Is this really what the authors of the 14th Amendment intended?
Of course not.
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Prior to Trump, only one person had been denied office under Section 3. And he was convicted under the Espionage Act.
If Democrats and their libertarian allies want to kick Trump off the ballot through Section 3, they are going to need to get a conviction first.