A supreme assault on democracy from Colorado courts
Washington Examiner
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Colorado‘s Supreme Court has become a partisan embarrassment to the state. It has been notorious for years for harassing Christian bakers who, for example, refused to bake cakes celebrating gay weddings. Now, it thinks it should usurp voters’ right to choose their president. It was sternly rebuked by the United States Supreme Court for its persecution of the cake-makers, and it deserves to be rebuked again for the flagrantly partisan decision it just handed down about the forthcoming presidential election.
A small group of activist Colorado voters, funded by the far-left activist group Citizens for Responsibility and Ethics in Washington, or CREW, sued Colorado’s secretary of state, claiming that former President Donald Trump should be disqualified from appearing on Colorado’s ballot because he engaged in insurrection on Jan. 6, 2021. Their case rested on Section 3 of the 14th Amendment, which reads, in part:
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“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.”
A lower court held, without trial, that Trump did engage in insurrection on Jan. 6 but declined to remove him from the ballot, holding that Section 3 of the 14th Amendment did not apply to the president. The Colorado Supreme Court agreed that Trump engaged in insurrection but reversed the ruling on whether Section 3 applies to presidents.
Whether Section 3 applies to a president should be irrelevant, however, because Section 5 of the 14th Amendment calls for Congress to pass a law enforcing Section 3. Congress did that. Title 18 Section 2383 of the United States Code says anyone convicted of “insurrection” shall be subject to a fine, a maximum 10 years in prison, and “shall be incapable of holding any office under the United States.”
Congress created a crime of insurrection directly related to Section 3 of the 14th Amendment. Trump has not, however, been convicted of insurrection. He hasn’t even been charged. This is not a fussy, punctilious, and irrelevant objection to the CREW lawsuit. It is fundamental to its probity, and it fails the test.
In direct violation of the 5th Amendment, the Colorado Supreme Court deprived Trump of the right to run for office without due process. If Democrats think Trump is guilty of insurrection, they should charge him with that crime in federal court. That they have failed to do so precludes using the 14th Amendment to disqualify him from office.
This publication does not want Trump to be the Republican nominee, let alone to be president again, so defending his right to run has nothing to do with our preferred outcome in next November’s election. The Washington Examiner argued on Nov. 20, 2020, that Trump lost the last election and should concede, we renewed it the following month after the Electoral College voted for Biden, and we condemned the Jan. 6 violence.
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Trump is unfit for the office of president, but allowing states to disqualify federal candidates by judicial fiat would be a huge blow to our democracy. What about the 11 Republican senators and senators-elect who signed a joint statement on Jan. 2, 2021, calling for a delay of the Jan. 6 certification? Are they also guilty of engaging in insurrection? Or what about Vice President Kamala Harris, who supported Black Lives Matter rioters even to the point of helping bail them out? Surely her actions also encouraged the open and active use of force against the execution of law.
There are many, many reasons beyond Jan. 6 why Trump should not be the next president. But that is a decision that must be left to voters. The Colorado Supreme Court needs to learn the limits of its power. We are confident the U.S. Supreme Court will teach the state justices that lesson soon.