COLORADO SUPREME COURT RULES ON TRUMP BALLOT QUESTON
OR
HOW TO ENGINEER A CONSTITUTIONAL CRISIS
Yesterday, Tuesday, December 20, 2023, is a day that will (or at least should) live in infamy in Colorado. In a four-to-three ruling, the seven member, all-Democrat appointed State Supreme Court decided that Donald Trump is ineligible to appear on the 2024 Colorado Primary Election ballot because he engaged in insurrection on January 6, 2021 in accordance with section three of the 14th Amendment.1
In issuing this ruling, the Colorado Supreme Court overturned the November ruling of Denver District Court Judge Sarah Wallace wherein she determined that, although President Trump engaged in insurrection, section three of the 14th Amendment does not apply to him.
While the State Supreme Court’s ruling quickly became a cause for celebration among Democrats nationwide, there is an interesting twist to it. The court stayed2 its own proscription of Trump from the Colorado ballot to allow the US Supreme Court to take up the matter. So long as the SCOTUS agrees to hear this case by January 4, 2024, Trump’s name must be placed on the Colorado ballot. It’s as if the Colorado justices know that they are out over their skis in their ruling. In fact, the three dissenting justices point this out.
While the four justices in the majority decision seem to accept all of the petitioners’ arguments without issue, the dissenting three articulate problems with jurisdiction, lack of Congressional guidance as regards section three of the 14th Amendment, inappropriate application of CO State statutes, and the lack of authority of the (Colorado) judiciary to make a ruling on the 14th Amendment.
To summarize all of this, the Colorado Courts do not have a role in making the decisions they are making here. None of the state laws (1-1-113, or 1204) have anything to do with determining the applicability of the 14th Amendment. Nowhere in the state constitution or the US Constitution is the judiciary granted powers to determine candidate eligibility. If this authority could be ascribed to any branch of the government, it would be the legislative branch. In fact, section five of the 14th Amendment specifically grants Congress the authority to pass laws in order to enforce the 14th Amendment. Congress has not passed any laws as regards section three. Therefore, any court (or Secretary of State) who makes a determination using section three is conferring upon themselves the authority to do so without any sort of precedent or delegation.
Which raises the next part of this problem – who or what determines if a candidate has engaged in insurrection? The answer is “we don’t know, because Congress hasn’t offered any guidance on this.” This cuts at the petitioners’ argument(s) that section three is self-executing. How can section three be self-executing if there is no guidance as to what it means? For the Colorado Supreme Court to follow this logic, it confers limitless discretion upon themselves, the Secretary of State, and county clerks to make their own determinations of whether a candidate is infirmed by the 14th Amendment. Again, this is because Congress has not passed any laws regarding the applicability of section three. There is no clear standard as to how it should be applied, when it should be applied, why it should be applied, or even to whom it applies. In order for something to be “self-executing,” there need to be very clear guidelines and standards for what is being executed, how it is to be executed, and when and why. The Colorado Supreme court just appointed itself the arbiter of this provision without any sort of precedent or legal authority to do so.
If this decision stands, then it follows that there are as many ways to interpret and apply section three as there are courts and election officials in the US. Chaos.
The Colorado judiciary has also taken upon itself the right and authority to insert itself into a political party’s nomination process. This case has been about a primary election – that is how a party nominates a candidate to be the party’s representative on a general election ballot. No one who wins a primary race assumes an office. In fact, minor parties don’t even have primary elections and both major parties have the option to abandon the Secretary of State-run primary election and choose their candidates through assembly or convention. It is absurd to think that anyone other than party members should tell that party who can be considered as their candidate. In fact, the courts have traditionally been rather reticent when it comes to cases involving political parties and political processes: They would rather not involve themselves in the inner workings of politics3 ... which is what a primary election is. But this one involves Donald Trump, who is an existential threat to Democrats, and all the members of the courts who heard this case and the Secretary of State are Democrats. This wasn’t about the rule of law, or the US Constitution. This was about neutralizing their greatest and most efficacious political opponent.
The Colorado Supreme Court seems to recognize this rather obvious fact, which is why they stayed their own ruling. As much as they want to take out Donald Trump, they know they have no legal authority to do what they just did. They want to score ideological points and demonstrate fealty to their constituency, but they know their remedy for Trump is not tenable…so they are punting by letting the Trump Team call on the US Supreme Court to strike them down and prevent them from creating a massive constitutional crisis.
This ruling and this entire exercise in legal absurdity are reprehensible. This case should have died upon presentment – there is no way that the District Court Judge didn’t realize that she was beyond her authority by hearing it and making a ruling on a matter that, ultimately, is the domain of a private organization (political parties are private organizations). The petitioners’ pleadings were based on the notion that a party would be disenfranchising them by offering an unqualified candidate (based on their personal opinions) on a primary ballot. It was the pinnacle of hubris for six malcontents to bring such a case and ask the courts to disenfranchise over a million other voters by tampering with the ballot. If the petitioners feel so strongly against a particular candidate, they should simply not vote for that candidate. It has been the pinnacle of hubris and megalomania for the Secretary of State and the Colorado Judiciary to join them in this in this despicable quest to interfere in an election.
- Todd M Watkins
Vice Chairman
El Paso County GOP
1. Temporarily stop a proceeding or action from happening. Usually pending some other litigation that could potentially change the outcome of the matter at hand.
2. https://constitution.congress.gov/constitution/amendment-14
3. E.g., In December of 2022, a civil case was brought to the Denver District Court asking for the resolution of a dispute between the State GOP and a county GOP. The case was dismissed on lack of jurisdiction citing that political parties are private organizations and must resolve disputes/controversies internally. In other words, the same court that took on the Trump case is the same court that claimed no authority to hear a political case.
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(Read Part 1. - HOW TO ENGINEER A CONSTITUTIONAL CRISIS)
Part two of HOW TO ENGINEER A CONSTITUTIONAL CHRISIS
December 22, 2023
The five-day bench trial that found Donald Trump “guilty” of engaging in insurrection saw hours of testimony from so-called 14th Amendment subject matter experts, most notably the petitioners’ witness, Gerard Magliocca. In fact, having rejected or greatly discounted the testimony from other subject matter experts, Denver District Judge Sarah Wallace based her ruling largely on Magliocca’s testimony. Although Judge Wallace ultimately ruled that Section 3 of the 14th Amendment was not applicable to the Presidency, her finding that President Trump engaged in insurrection according to Section 3, and Magliocca’s testimony during the November trial, can account for the majority decision of the Colorado Supreme Court’s ruling to remove President Trump from the 2024 presidential primary race. Setting aside the automatic stay that the Colorado Supreme Court Justices applied to their ruling, there are problems with the bases of their decision that stem from the November trial.
Less than three weeks after the January 6 event that precipitated all of this, Gerard Magliocca was interviewed by CBS News. He was interviewed because of his 14th Amendment expertise and legal scholars and some legislators in the US were already wondering how political partisans would use Section 3 in the 2024 election cycle. Magliocca’s interview in 2021 is vastly different than his testimony before Judge Wallace. In fact, had he made the same statements in Judge Wallace’s courtroom as he did to CBS, it is questionable whether that judge, and subsequently the Colorado Supreme Court, would have made the same decisions.
Section 3 has little history behind it beyond its application in the wake of the Civil War as a way to punish and coerce fealty from former Confederates. Magliocca himself even said “nobody then gave any thought to what other insurrections look like,” meaning that the framers of the 14th Amendment “knew the insurrection meant the Confederacy.” Applying Section 3 insurrection to a situation that doesn’t involve the Civil War “would be something done for the first time, and it would be challenging.” But most telling is Magliocca’s hypothetical process for a means to apply section 3 in a post-Reconstruction America. He told CBS that “lawmakers would first
make findings of fact about the events of January 6, followed by a declaration of their opinion on whether Mr. Trump engaged in insurrection and is ineligible to hold public office again, potentially through a concurrent resolution. Then, in a federal statute, lawmakers would lay out the procedure for Section 3 claims to be tested.” This is a big deal. The expert testimony upon which two courts based their rulings clearly describes a legislative process that must precede a judicial process. In other words, there is no clearly defined meaning of Section 3 in order to apply it correctly, effectively, or justly: “There’s no enforcement mechanism for this right now, for Section 3…So somewhere in there has to be an act of Congress to create enforcement authority and a process.” It’s up to Congress to pass legislation to prescribe the meaning behind Section 3 and a process to enforce it. Even the petitioners’ own expert did not envision or endorse a purely judicial process—a five day bench trial—to establish a Section 3 precedent. Both the 14th Amendment and Magliocca’s 2021 interview clearly assign authority and responsibility to Congress as regards the 14th Amendment and Section 3 in particular. This was not ever supposed to be the domain of the judiciary; it falls on Congress to answer this question and provide a clear pathway to applying and enforcing Section 3.[1]
One has to wonder why none of this came out during Magliocca’s testimony. Judge Wallace (and presumably the Colorado Supreme Court) seemed to feel that Magliocca spelled out a very clear-cut rationale as to why President Trump committed insurrection and why Section 3 was self-executing. There have been no substantive Constitutional and/or legal changes between his January 2021 interview and his mid-November 2023 testimony to account for such a different point of view. What has developed, however, is a clear and urgent need to torpedo the obvious leader in the Republican polls.
One Way to Avoid a Constitutional Crisis
We should be very troubled by the fact that the judiciary’s go-to solution in a murky-at-best question regarding an election is to remove a candidate from the ballot. If the petitioners’ cry is that they are disenfranchised by placing Trump on the ballot, how is unceremoniously removing him from the ballot not the same thing? In normal times this would be left to the electorate. In the absence of clear legislation to inform the decision, this should absolutely be left to the electorate. It would be far more prudent for the judiciary to call upon Congress to pass legislation that a court could actually rule on rather than the courts using their ideological sensibilities to write laws from the bench. Denying people a vote and publicly punishing and shaming President Trump is bombastic, but sober, evenhanded justice seldomly gets notoriety. And if it is notoriety the petitioners and courts were after, their heavy-handed, authoritarian application of a partisan interpretation of an obscure, archaic provision of law has indeed earned them that.
Another Way to Avoid a Constitutional Crisis
The courts also missed (or ignored) another means to resolve matters of presidential qualifications: The 20th Amendment. Specifically Section 3 of the 20th Amendment which seems to offer the remedy to the problem presented by the petitioners:
…if the President-elect shall have failed to qualify, then the Vice President-elect shall
act as President…
In other words, if Congress determines that President Trump is not qualified to serve as President, they can refuse to seat him in that office and seat his running mate instead. So, even if President Trump clears all the hurdles to become elected (primary races, conventions, and the dubiousness of a general election) the Congress still has the final say as to determining his qualifications, and that is what the case against him alleges: That he is not qualified because of Section 3 of the 14th Amendment. There is no way to rationalize or excuse rogue secretaries of state, disgruntled and disaffected petitioners, or activist judges legislating from the bench and interfering in an election. The 20th Amendment is the legitimate mechanism for preventing a Constitutional crisis.
- Todd M Watkins
Vice Chairman
El Paso County GOP
[1] All quotes and citations are from https://www.cbsnews.com/news/14th-amendment-insurrection-rebellion-trump-post-presidency/ published on January 22, 2021 (Melissa Quinn)
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CLICK ON IMAGE ABOVE TO GO TO TINA'S WEBSITE
CLICK ON THE IMAGE ABOVE TO GO TO THE FILING
Ron Hanks, the Chairman of the Colorado GOP Ballot and Election Security Committee, invited a subject matter expert to discuss with County Chairmen and concerned Republicans about the (mysterious) RLA. "Witness One" explains the Risk Limiting Audit in layman's terms, along with explainations of its shortfalls.
COGOP Risk-Limiting Audit Briefing Nov 28, 2023 - PART 1
Part 1 of this briefing provides an overview of critical issues with the risk-limiting audit (RLA) during November 2023 election in Colorado. This includes the biased selection of contests to audit in each county and using RLA software rather than "a manual random audit" [by comparing the audited ballots to the cast vote record (CVR) for that ballot card] as required by Colorado statute.
CO GOP Risk-limiting Audit Briefing November 28, 2023, Part 2
In Part 2, we demonstrate how to use the RLA audit tool to evaluate sample sizes and discuss some options to challenge the RLA implementation. As conducted, the RLA fails to achieve a 3% risk limit for most contests in Colorado.
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