How To Engineer A Constitutional Crisis

Opinion by Todd Watkins

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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 14^th 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 14^th 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 stayed[1] 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 14^th Amendment, inappropriate application of CO State statutes, and the lack of authority of the (Colorado) judiciary to make a ruling on the 14^th 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 14^th 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 14^th Amendment specifically grants Congress the authority to pass laws in order to enforce the 14^th 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 14^th 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 politics[2]…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.

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[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] 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.

[1] https://constitution.congress.gov/constitution/amendment-14/