The Daily - Why a Colorado Court Just Knocked Trump Off the Ballot

Episode Date: December 20, 2023

The Colorado Supreme Court ruled on Tuesday that former President Donald J. Trump is barred from holding office under the 14th Amendment, which disqualifies those who engage in insurrection, and directed Mr. Trump’s name to be excluded from the state’s 2024 Republican primary ballot.Adam Liptak, who covers the court for The Times, explains the ruling and why the case is likely headed to the U.S. Supreme Court.Guest: Adam Liptak, who covers the United States Supreme Court for The New York Times.Background reading:Trump Is Disqualified From Holding Office, Colorado Supreme Court RulesColorado Ruling Knocks Trump Off Ballot: What It Means, What Happens NextRead the Colorado Supreme Court’s Decision Disqualifying Trump From the BallotFor more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, the story behind the bombshell court ruling issued last night that could knock Donald Trump off the ballot for president in Colorado and open the floodgates for efforts to disqualify him across the country. I spoke with my colleague, Supreme Court reporter Adam Liptak. It's Wednesday, December 20th. So Adam, thank you for jumping on with us.

So last minute and so late at night. It is 10 p.m. on the nose. And we're talking to you at this ungodly hour because we've all just been jolted by a very big ruling from the Colorado Supreme Court. Can you briefly just describe that ruling? you briefly just describe that ruling? The Colorado Supreme Court, by a four to three vote, said that Donald Trump is not eligible to be on the ballot for the Republican primary election there, saying that a provision of the 14th Amendment adopted after the Civil War bars people who have engaged in insurrection from holding federal office, that Donald Trump did engage in an insurrection in his efforts to overturn the 2020 election, and that this clause, although fashioned for the aftermath of the Civil War,

continues to have force and requires the court to bar him from being on the ballot. and requires the court to bar him from being on the ballot. So just in summary, the court has found that Trump's overall conduct around what we have come to call January 6th, his role in a pretty elaborate effort to overturn the 2020 election despite losing it, means that he should not be allowed to stand for re-election in Colorado, which would seem to have very big implications for the 2024 election because it's an election that's about to start in just a few weeks. Primaries will be underway by mid-January. Yeah, so it's enormously consequential in Colorado. There are similar lawsuits filed in other states, notably Michigan.

similar lawsuits filed in other states, notably Michigan, this decision will almost certainly result in even more of them. And this really needs to be an issue that is resolved on a nationwide basis, meaning it has to go to the Supreme Court. And it would be shocking if the Supreme Court would not wade in, take this case or a similar one, and issue a ruling on this question that, you know, a decade ago would have been impossible to imagine, that this Civil War-era constitutional provision could, at least in legal theory, knock the leading candidate of one of the two major political parties off the ballot. Right. I mean, what you're describing is a Supreme Court case with monumental stakes because the court will be asked to shape the contours of the next presidential race. Right. And, you know, the Supreme Court knows that it can't let chaos reign.

It has to issue a definitive ruling. So it's kind of impossible to imagine that one court having gone this far and the Supreme Court of a major state, that the U.S. Supreme Court would stay out of it. It will feel obligated to give us a definitive answer. Okay, so Adam, given how big the stakes of this already are and how big they are going to be

when the Supreme Court takes it up, give us the story behind this pretty extraordinary case and how it is that it ever reaches this point. So it didn't take long after January 6th for liberal legal activists and others to note that just as the Constitution says you can't be president if you're not 35 years old, you also can't be president if you're an insurrectionist. And the theory being that Section 3 of the 14th Amendment bars people who have taken an oath to support the Constitution of the United States from holding office if they then, quote, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. So they say that fits Donald Trump pretty well. And this theory

gets a lot of applause and support from precisely the people you might imagine from liberals. gets a lot of applause and support from precisely the people you might imagine from liberals. But as time goes on, legal scholars and others start to say, wait a second, this actually makes sense. Scholars like who? Well, the issue really gets turbocharged in August when two prominent conservative law professors, members of the Federalist Society, William Bode of the University of Chicago, and Michael Stokes Paulson of the University of St. Thomas, published an early draft of a long article that's going to be in the University of Pennsylvania Law Review. And they are originalists, meaning that they try to unearth the original meaning of the

constitutional provision. And the more they looked at it, the more they thought it was indisputable that Donald Trump had committed the kinds of acts that the provision gets triggered by and otherwise qualifies as someone who should be excluded from the ballot because of the things he did. So these conservative-minded legal theorists, who you might think on paper would be inclined to identify with Trump, agree that Trump does qualify as an insurrectionist under the 14th Amendment, and as a result should be ineligible from being on the ballot for the presidency. Yeah, they looked at the historical record, and they found that there was, as they put it, abundant evidence that Trump engaged in an insurrection, including by setting out to overturn

the results of the election, trying to alter vote counts by fraud and intimidation, pressuring the vice president to violate the constitution, calling for the march on the Capitol. I mean, they say that every official in the land, that election officials themselves, the state secretaries of state in charge of state election law, has an obligation to keep Trump off the ballot. Wow. The Constitution simply says, they say, that if you've done these things, you cannot be president. And so how does this turbocharged conversation lead to a case in Colorado? A group of Colorado voters file a lawsuit saying Donald Trump should not be allowed to be on the primary ballot. And the lawsuit proceeds and it goes to a state trial judge.

And she does something interesting. She says, first of all, that Donald Trump did engage in insurrection. But she says Section 3 nonetheless doesn't apply to him for two reasons. kind of oath that triggers Section 3. And she says the office that he seeks, the presidency, is not one of the offices from which Section 3 disqualifies people. So for both of those reasons, she says Section 3 doesn't apply to Donald Trump, even though he engaged in insurrection. So what happens after that? Well, there's an appeal on a very quick schedule to the Colorado Supreme Court. Both sides are unhappy with some parts of the decision. Donald Trump is not happy to be called an insurrectionist. The voters are not happy that they lose on what they see as a kind of weird technicality. And the state Supreme Court,

for the first time in the history of the republic, is faced with the question of whether it's going as a kind of weird technicality. And the state Supreme Court, for the first time in the history of the republic, is faced with the question of whether it's going to disqualify a candidate for president from one of the major political parties. We'll be right back. So Adam, once the Colorado Supreme Court and its judges take up this case on appeal, what happens to it? So the court has a long involved oral argument. The justices are quite engaged. They're all of them appointed by Democrats, but they come at the case from many different angles.

There are lots of legal issues in it. And Trump's lawyers dispute the insurrectionist point to some extent. They minimize Donald Trump's involvement. They say maybe it was more a riot than an insurrection. But they really press hardest on the point that the provision we've been talking about, Section 3 of the 14th Amendment, doesn't apply to their client and doesn't apply to the office of the presidency. So they seize on this lower court judge's decision. Right. And they get a kind of skeptical response from at least some of the

justices on the Colorado Supreme Court. One of them saying, how is that not absurd? I mean, in what world would the framers of the 14th Amendment want to disqualify everybody from every federal office who is engaged in insurrection except for a former president and except for the office of the presidency. The court looked at lots of other issues too, most of them too technical to spend a lot of time on. But there are questions like, does the court have jurisdiction? Is this a political question that should not be resolved by judges? Does Congress have to act to implement the 14th Amendment? It's a thicket of complicated legal issues. But the two key points are the factual one,

did he engage in insurrection? And the legal one, does Section 3 apply to him at all? And when the court rules 4 to 3, they say that the voters challenging Trump's candidacy have run the table on all of these issues, have established that he is an insurrectionist, and have established also that the provision, Section 3, applies to Donald Trump. And in issuing this decision, the four justices in the majority seemed to recognize the gravity of what they were doing. They wrote, we do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law without fear or favor and

without being swayed by public reaction to the decisions that the law mandates we reach. Okay, so let's now turn, Adam, to the question of how quickly this case is likely to get to the U.S. Supreme Court now on appeal and how we think this Supreme Court is likely to receive it and think about it. There's every reason to think Donald Trump will go to the Supreme Court in very short order. And there's every reason to think the court will take the case and in due course, but probably not for a month or two, issue a definitive ruling. What will that ruling be? Well, I think that we should first of all reject the idea that it's a predictable 6-3 ruling in favor of Donald Trump. Because the court's conservative majority is

6-2-3 liberals. That's right. Six Republican appointees, three Democratic appointees, and on a kind of knucklehead level, you might think, well, that'll tell us what's going on. But I think what will weigh on the justices more and on both sides of the ideological aisle is who should decide this question. Should the voters take account of Donald Trump's conduct in the aftermath of the 2020 election and make judgments for themselves about whether he's fit to be president again? Or should courts, relying on a provision of the Constitution of the United States that seems to speak to this issue, take that question out of the voters' hands? Interesting. Many of the justices, you're saying, perhaps all the justices, even the liberal justices,

may be reluctant to issue the kind of ruling against Trump in this case that would effectively take electoral choices away from voters. Yes, that's right. And I think that works on two levels. The justices, of course, will understand themselves to be making a purely legal judgment based on text, history, structure of the Constitution, the facts, and so on. But even some of the doctrines that they're looking at, like the so-called political question doctrine, which urges courts to stay out of some kinds of disputes, are broadly similar to an impulse that many people might have in a non-legal sense, that these are serious matters. Donald Trump is accused of doing grave wrongs in trying to

overturn the election, but who should decide the consequences of that? Should it be nine people in Washington? Or should it be the electorate of the United States, which can, you know, for itself, assess whether Trump's conduct is so blameworthy that he should not have the opportunity to serve another term? Hmm.

Another way to think about this is that you're suggesting that judicial restraint that he should not have the opportunity to serve another term. Hmm. Another way to think about this is that you're suggesting that judicial restraint in matters of an election might override the justices' impulse to carefully read the 14th Amendment and the facts of this case and find that Trump is an insurrectionist and that the courts have the power to take him off the ballot?

The prospect of what would be a profoundly anti-democratic ruling saying that people who want to vote for Donald Trump may not vote for him is going away on the justices. It will be part of this rich stew of calculations that go into their decision in this case. Got it.

And if I'm reading between my lines here, what you're really saying is it's going to be unlikely that the Supreme Court rules that Trump should be taken off the ballot in Colorado or any other state where voters are filing similar lawsuits? It's early days. We've just had the first major decision. There's going to be a lot of briefs, a lot of arguments, and we'll learn a lot more. But if you ask me today what the likely outcome is at the Supreme Court, it is not that they're going to tell the American public that one of the two leading candidates for president can't be on the ballot.

Well, let's play with that for just a moment. Let's say the Supreme Court surprises us, surprises you, and decides to let this ruling from Colorado Supreme Court stand. Just on a legal basis, what would be the consequences of that, given, as you have said, that people are trying to file similar lawsuits across the country? You would expect lawsuits in just about every state. And you would expect some state election officials, some state secretaries of state, to themselves take action to take Trump off the ballot. If the Supreme Court were to greenlight the idea

that Trump's participation in the aftermath of the 2020 election disqualifies him, it would give rise to all kinds of actions in all kinds of states. It seems hard to overstate, Adam, just how delicate this moment seems to be. We have a deeply polarized electorate, an election that is shaping up to be excruciatingly close, according to many polls. And the knowledge that the last election, featuring the same two candidates we think might end up being the nominees again, ended with a violent insurrection at the Capitol, we've been talking about it, over doubts about the legitimacy of that election. And now, this election is already in court long before any votes have been cast,

and the courts are being asked whether one of these two candidates should even be allowed on the ballot. And so depending on the ruling, those really do look like the ingredients for a potential powder keg, for something that could be very scary. Yeah, Michael, it's a dangerous moment. Yeah, Michael, it's a dangerous moment. I got an email tonight from Rick Hassan, a prominent election law specialist at UCLA, who said the stakes remind him of Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush. Right.

He said, once again, the Supreme Court is being thrust into the center of a U.S. presidential election. But unlike in 2000, the general political instability in the United States makes the situation now much more precarious. Well, Adam, thank you very much. We really appreciate it. Thank you, Michael. We'll be right back. Here's what else you need to know today. On Tuesday, the U.S. military laid out a plan to create a naval coalition to confront militants in Yemen who have been using drones and rockets to attack commercial

ships in the Red Sea. The militants, members of the Houthi militia, began firing on the ships as a protest of Israel's war on Hamas, an ally of the Houthis. As a result, some of the world's biggest companies have stopped sending their tankers through the Red Sea. The new naval coalition will include contributions from, among others, Britain, Bahrain, Canada, France, and Italy. Canada, France, and Italy. And a new analysis shows that 2023 was a uniquely unproductive year for the House of Representatives. The Republican-led chamber passed just 27 bills

that became law, despite holding 724 votes. According to the Bipartisan Policy Center, that is more voting and less lawmaking than at any other point in the past decade. Today's episode was produced by Rob Zipko and Carlos Prieto. It was edited by Lisa Chow and Rachel Quester. Contains original music from Marion Lozano and Dan Powell. And was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly.

That's it for The Daily. I'm Michael Barbaro. See you tomorrow.