The legal chaos unleashed by Colorado Supreme Court
Conn Carroll
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Whether or not someone is a natural-born citizen is a purely factual question. Same with whether or not someone is 35 years of age. You either are or you are not.
Whether or not someone has “engaged in insurrection or rebellion” is not a factual question. What constitutes an “insurrection” is highly contested, as is what constitutes “engagement.” That people like George Mason University law professor Ilya Somin can’t grasp this simple distinction is just one reason why the Supreme Court will soon rule that former President Donald Trump cannot be removed from state ballots.
In a recent post defending the power of any secretary of state to kick anyone they don’t like off a ballot for federal office by declaring them an insurrectionist, Somin claims I said that Colorado courts had no jurisdiction to hear a lawsuit trying to kick Trump off the ballot.
I never said any such thing. What I did do, was invoke the reasoning behind jurisdiction to highlight the ridiculousness of state courts and officials around the country all rendering their own verdicts on what is and is not an insurrection and determining who and who has not engaged in insurrection. That would be chaos, and that is what we have now.
Yes, of course state courts have jurisdiction to hear claims about who should be on the ballot, and secretaries of state do have the power to kick people off the ballot for not meeting constitutional requirements. Liberal activist Cenk Uygur, for example, has been kicked off the presidential ballot in multiple states because he was born in Turkey and therefore is not a natural-born citizen pursuant to Article 2 of the Constitution.
But this is a purely factual question. The state courts did not have to conduct a trial to determine where Uygur was born. It was a fact stipulated by all parties.
The question of whether what happened on Jan. 6 was an “insurrection” that Trump “engaged” in is not a fact stipulated by both sides. It is highly contested.
Somin writes that “none of the ex-Confederates disqualified in the aftermath of the Civil War were convicted of any criminal offenses related to their participation in the Civil War.” That’s irrelevant. It was their status as Confederates, not what they did as Confederates, that made them ineligible. None of them denied having been Confederates.
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But what Somin conveniently ignores is that the only non-Confederate before Trump who was ever removed from a presidential ballot pursuant to Section 3 of the 14th Amendment had previously been convicted under the Espionage Act.
Since Somin wrote his latest defense of the Colorado Supreme Court, Maine’s secretary of state has also unilaterally decided to kick Trump off the ballot. Somin apparently thinks this is how Section 3 of the 14th Amendment is supposed to work, with courts and officials around the country all coming to different conclusions about whether or not Trump is an insurrectionist. It is a manifestly chaotic outcome, and there is simply no way it is what the authors of the 14th Amendment intended.