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The NYTimes' December 19/20, 2023 LIVE: Trump Ballot Ruling; Trump Is Disqualified From the 2024 Ballot, Colorado Supreme Court Rules includes the following:

The Colorado court’s lengthy ruling ordered the Colorado secretary of state to exclude Mr. Trump from the state’s Republican primary ballot. The justices also reversed a Denver district judge’s finding last month that Section 3 did not apply to the presidency.

Question: How did the Colorado Supreme Court justify extending Section 3 of 14th amendment to the presidency? How did the minority opinion argue against this?

Here is a link to the Colorado Supreme Court's majority opinion and dissenting opinions (via the comments).

cf. Wikipedia's Fourteenth Amendment to the United States Constitution; Section 3: Disqualification from office for insurrection or rebellion where it seems explicit mention of the office of president is conspicuously absent:

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

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    I’m voting to close this question because this lacks research effort to find out for themselves what the answer is. Usually rulings like this are public and explicit in their reasoning. The OP appears to be asking others to do that research/online searches for them. Also, as posted, Section 3 of the 14th Amendment explicitly includes the POTUS in the wording, so there's no need to "extend" it, as it's already covered. Dec 20, 2023 at 22:25
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    No, the OP does not appear to be asking others to do research/online searches for them. The OP links to the Court's opinion in the question itself.
    – uhoh
    Dec 21, 2023 at 4:13
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    The wording of the question is not entirely neutral. The court is not "extending" the definition of amendment 14s3 but clarifying it since there has not been an agreed definition previously, indeed there have been no relevant decisions at all.
    – matt_black
    Dec 21, 2023 at 13:55
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    Wouldn't a better question be how the district judge justified that the Presidency is not included in "any office"?
    – Barmar
    Dec 22, 2023 at 15:18
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    @Barmar the clause in question is "as an officer" not "hold any office". The former refers to the person's status at the time of engaging in insurrection; the latter refers to their eligibility in future. The district judge ruled that president is not a type of officer; they did not rule that the office of the president is not an office. Yes it's a dumb distinction but it is a real distinction. Dec 22, 2023 at 20:51

5 Answers 5

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This is answered at paragraphs 129–59. It is summarized simply at para. 158:

“[t]he simplest and most obvious interpretation of a Constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption.” Lake County v. Rollins, 130 U.S. 662, 671 (1889). The most obvious and sensible reading of Section Three, supported by text and history, leads us to conclude that (1) the Presidency is an “office under the United States,” (2) the President is an “officer . . . of the United States,” and (3) the presidential oath under Article II is an oath to “support” the Constitution.

For details of the historical usage and common understanding of the words at issue, you can read paragraphs 129–59 in full. It is fairly plain reasoning.

None of the three separate dissenting judges dissent on that point.

The dissents instead are based in other reasons to find that this barrier in Section 3 does not require Colorado's Secretary of state to exclude Mr. Trump from the upcoming primary ballots, such as:

  • that Section 3 is not "self-executing";
  • that neither Section 3 nor the relevant election codes obligate the secretary of state to keep a person who is ineligible due to Section 3 off of a primary ballot;
  • issues relating to the fact-finding process relied upon;
  • etc.

Ohwilleke's answer summarizes the dissenting reasons in more detail.

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How did the Colorado Supreme Court justify extending Section 3 of 14th amendment to the presidency? How did the minority opinion argue against this?

This answer looks at the majority opinion of the Colorado Supreme Court, then at the three dissenting opinions, after first briefly reviewing the trial court opinion which it reviews. This answer then notes Trump's official reaction, and examines why the case has the timing it does and what the next step is after the Colorado Supreme Court's ruling.

The Trial Court Decision That Was Appealed

The Colorado Supreme Court ruling affirmed the 102 page long trial court ruling of Denver District Court Judge Sarah B. Wallace, entered after a five day evidentiary hearing which was followed by closing arguments from the parties several days later. The Colorado Supreme Court was required to defer to Judge Wallace's factual findings.

The trial court held that the contest was procedurally sound, and that the Trump did participate in an insurrection, but held that Section 3 of the 14th Amendment does not apply to the office of President of the United States, a position that none of the seven Colorado Supreme Court justices agree with on appeal. The majority overrules this part of the trial court's opinion, and the dissents don't address this part of the trial court's opinion (but don't expressly disagree with the majority's opinion on this point).

The Colorado Supreme Court's Majority Opinion

The official syllabus of the Colorado Supreme Court opinion states:

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The 133 page per curiam opinion (the three dissents are also at this link) of the four justice majority summarizes its ruling as follows:

¶4 The Electors and President Trump sought this court’s review of various rulings by the district court. We affirm in part and reverse in part. We hold as follows:

• The Election Code allows the Electors to challenge President Trump’s status as a qualified candidate based on Section Three. Indeed, the Election Code provides the Electors their only viable means of litigating whether President Trump is disqualified from holding office under Section Three.

• Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach, and Section Three is, in that sense, self-executing.

• Judicial review of President Trump’s eligibility for office under Section Three is not precluded by the political question doctrine.

• Section Three encompasses the office of the Presidency and someone who has taken an oath as President. On this point, the district court committed reversible error.

• The district court did not abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial.

• The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection.”

• The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.

• President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.

¶5 The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot.

The state law statute authorizing the lawsuit states:

¶44 The current version of section 1-1-113 establishes (with exceptions not relevant here) “the exclusive method for the adjudication of controversies arising from a breach or neglect of duty or other wrongful act that occurs prior to the day of an election.” § 1-1-113(4) (emphasis added). It provides: When any controversy arises between any official charged with any duty or function under this code and any candidate, or any officers or representatives of a political party, or any persons who have made nominations or when any eligible elector files a verified petition in a district court of competent jurisdiction alleging that a person charged with a duty under this code has committed or is about to commit a breach or neglect of duty or other wrongful act, after notice to the official which includes an opportunity to be heard, upon a finding of good cause, the district court shall issue an order requiring substantial compliance with the provisions of this code. The order shall require the person charged to forthwith perform the duty or to desist from the wrongful act or to forthwith show cause why the order should not be obeyed. The burden of proof is on the petitioner. § 1-1-113(1) (emphases added).

The next part of the majority's analysis considers where it is appropriate for state courts to consider this issue, in general, and not just under Colorado's relevant statute. The majority reasons that:

¶50 “Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections . . . .” Burdick v. Takushi, 504 U.S. 428, 433 (1992). The Constitution delegates to states the authority to prescribe the “Times, Places and Manner” of holding congressional elections, U.S. Const. art. I, § 4, cl. 1, and states retain the power to regulate their own elections, Burdick, 504 U.S. at 433. States exercise these powers through “comprehensive and sometimes complex election codes,” regulating the registration and qualifications of voters, the selection and eligibility of candidates, and the voting process itself. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (“Celebrezze”); see also, e.g., § 1-4-501(1), C.R.S. (2023) (setting qualifications for state office candidates). These powers are uncontroversial and well-explored in U.S. Supreme Court case law.

¶51 But does the U.S. Constitution authorize states to assess the constitutional qualifications of presidential candidates? We conclude that it does.

¶52 Under Article II, Section 1, each state is authorized to appoint presidential electors “in such Manner as the Legislature thereof may direct.” U.S. Const. art. II, § 1, cl. 2. So long as a state’s exercise of its appointment power does not run afoul of another constitutional constraint, that power is plenary. Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020); McPherson v. Blacker, 146 U.S. 1, 25 (1892). 31

¶53 But voters no longer choose between slates of electors on Election Day. Chiafalo, 140 S. Ct. at 2321. Instead, they vote for presidential candidates who serve as proxies for their pledged electors. Id. Accordingly, states exercise their plenary appointment power not only to regulate the electors themselves, but also to regulate candidate access to presidential ballots. Absent a separate constitutional constraint, then, states may exercise their plenary appointment power to limit presidential ballot access to those candidates who are constitutionally qualified to hold the office of President. And nothing in the U.S. Constitution expressly precludes states from limiting access to the presidential ballot to such candidates. See Lindsay v. Bowen, 750 F.3d 1061, 1065 (9th Cir. 2014).

¶54 No party in this case has challenged the Secretary’s authority to require a presidential primary candidate to confirm on the required statement-of-intent form that he or she meets the Article II requirements of age, residency, and citizenship, and to further attest that he or she “meet[s] all qualifications for the office prescribed by law.” Moreover, several courts have expressly upheld states’ ability to exclude constitutionally ineligible candidates from their presidential ballots. See id. (upholding California’s refusal to place a twenty-seven-year-old candidate on the presidential ballot); Hassan v. Colorado, 495 F. App’x 947, 948–49 (10th Cir. 2012) (affirming the Secretary’s decision to exclude a naturalized citizen from the presidential ballot); Socialist Workers Party of Ill. v. Ogilvie, 357 F. Supp. 32 109, 113 (N.D. Ill. 1972) (per curiam) (affirming Illinois’s exclusion of a thirty-oneyear-old candidate from the presidential ballot).

¶55 As then-Judge Gorsuch recognized in Hassan, it is “a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” 495 F. App’x at 948. ¶56 The question then becomes whether Colorado has exercised this power through the Election Code. We conclude that it has. Section 1-4-1204(4) is Colorado’s vehicle for advancing these state interests. When eligible electors challenge the Secretary’s listing on the presidential primary ballot of a candidate who is not constitutionally qualified to assume office, section 1-4-1204(4), as exercised through a proceeding under section 1-1-113, offers an exclusive remedy under the Election Code. See § 1-1-113(4).

The majority then examines two related arguments, including the U.S. Term Limits argument:

¶64 We therefore reject such an interpretation as contrary to the purpose of the Election Code. Instead, we conclude that, under the Election Code, “qualified” candidates for the presidential primary are those who, at a minimum, are qualified to hold office under the provisions of the U.S. Constitution.

¶65 We recognize that the Supreme Court has twice declined to address whether Section Three—which disqualifies an oath-breaking insurrectionist from holding office—amounts to a qualification for office. Powell v. McCormack, 395 U.S. 486, 520 n.41 (1969) (describing Section Three and similar disqualification provisions in the federal constitution but declining to address whether such provisions constitute “qualification[s]” for office because “both sides agree[d] that [the candidate] was not ineligible under” Section Three or any other, similar provision); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 787 n.2 (1995) (seeing “no need to resolve” the same question regarding Section Three in a case concerning the propriety of additional qualifications for office). But lower courts, when presented squarely with the question, have all but concluded that Section Three is the functional equivalent of a qualification for office. See, e.g., Greene v. Raffensperger, 599 F. Supp. 3d 1283, 1316 (N.D. Ga. 2022) (“Section [Three] is an existing constitutional disqualification adopted in 1868—similar to but distinct from the Article I, Section 2 requirements that congressional candidates be at least 25 years of age, have been citizens of the United States for 7 years, and reside in the states in which they seek to be elected.”); State v. Griffin, No. D-101-CV-2022-00473, 2022 WL 4295619, at *24 (N.M. Dist. Ct. Sept. 6, 2022) (“Section Three imposes a qualification for public office, much like an age or residency requirement . . . .”).

¶66 We perceive no logical distinction between a disqualification from office and a qualification to assume office, at least for the purposes of the section 1-1-113 claim here. Either way, it would be a wrongful act for the Secretary to list a candidate on the presidential primary ballot who is not “qualified” to assume the duties of the office. Moreover, because Section Three is a “part of the text of the Constitution,” assessing a candidate’s compliance with it for purposes of determining their eligibility for office does not improperly “add qualifications to those that appear in the Constitution.” U.S. Term Limits, 514 U.S. at 787 n.2. Doing so merely renders the list of constitutional qualifications more complete.

¶67 Nor are we persuaded by President Trump’s assertion that Section Three does not bar him from running for or being elected to office because Section Three bars individuals only from holding office. Hassan specifically rejected any such distinction. 495 Fed. App’x at 948. There, the candidate argued that even if Article II “properly holds him ineligible to assume the office of president,” Colorado could not “deny him a place on the ballot.” Id. The Hassan panel concluded otherwise. Id. In any event, the provisions in the Election Code governing presidential primary elections do not recognize such a distinction. Rather, as discussed above, those provisions require all presidential primary candidates to be constitutionally “qualified” before their names are added to the presidential primary ballot pursuant to section 1-4-1204(1).

¶68 Were we to adopt President Trump’s view, Colorado could not exclude from the ballot even candidates who plainly do not satisfy the age, residency, and citizenship requirements of the Presidential Qualifications Clause of Article II. See U.S. Const. art. II, § 1, cl. 5 (setting forth the qualifications to be “eligible to the Office of President” (emphasis added)). It would mean that the state would be powerless to exclude a twenty-eight-year-old, a non-resident of the United States, or even a foreign national from the presidential primary ballot in Colorado. Yet, as noted, several courts have upheld states’ exclusion from ballots of presidential candidates who fail to meet the qualifications for office under Article II. See Lindsay, 750 F.3d at 1065; Hassan, 495 F. App’x at 948; Ogilvie, 357 F. Supp. at 113.

Another key part of the majority opinion considers whether Section 3 of the 14th Amendment can be enforced without federal authorizing legislation at ¶¶ 88-107. I'll quote only the first part of this analysis do to space limitations in a Politics.SE answer.

¶88 The Electors’ challenge to the Secretary’s ability to certify President Trump as a qualified candidate presumes that Section Three is “self-executing” in the sense that it is enforceable as a constitutional disqualification without implementing legislation from Congress. Because Congress has not authorized state courts to enforce Section Three, Intervenors argue that this court may not consider President Trump’s alleged disqualification under Section Three in this section 1-1-113 proceeding.11 We disagree.

11 Intervenors and their supporting amici occasionally assert that the Electors’ claim is brought pursuant to Section Three and that the Section is not selfexecuting in the sense that it does not create an independent private right of action. But as mentioned above, the Electors do not bring any claim directly under Section Three. Their claim is brought under Colorado’s Election Code, and resolution of that claim requires an examination of President Trump’s qualifications in light of Section Three. The question of “self-execution” that we confront here is not whether Section Three creates a cause of action or a remedy, but whether the disqualification from office defined in Section Three can be evaluated by a state court when presented with a proper vehicle (like section 1-1-113), without prior congressional authorization.

¶89 The only mention of congressional power in Section Three is that “Congress may by a vote of two-thirds of each House, remove” the disqualification of a former officer who had “engaged in insurrection.” U.S. Const. amend. XIV, § 3. Section Three does not determine who decides whether the disqualification has attached in the first place.

¶90 Intervenors, however, look to Section Five of the Fourteenth Amendment, which provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” to argue that congressional authorization is necessary for any enforcement of Section Three. Id. at § 5. This argument does not withstand scrutiny.

¶91 The Supreme Court has said that the Fourteenth Amendment “is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” The Civil Rights Cases, 109 U.S. 3, 20 (1883). To be sure, in the Civil Rights Cases, the Court was directly focused on the Thirteenth Amendment, so this statement could be described as dicta. But an examination of the Thirteenth, Fourteenth, and Fifteenth Amendments (“Reconstruction Amendments”) and interpretation of them supports the accuracy and broader significance of the statement.

¶92 Section Three is one of four substantive sections of the Fourteenth Amendment: • Section One: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .”

• Section Two: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State . . . .”

• Section Three: “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office . . . under the United States . . . who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same . . . .”

• Section Four: “The validity of the public debt of the United States . . . shall not be questioned.”

U.S. Const. amend. XIV, §§ 1–4 (emphases added). Section Five is then an enforcement provision that applies to each of these substantive provisions. Id. at § 5. And yet, the Supreme Court has held that Section One is self-executing. E.g., City of Boerne v. Flores, 521 U.S. 507, 524 (1997) (“As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing.”), superseded by statute, Religious Land Use and Institutionalized Persons Act of 2000, 114 Stat. 803, on other grounds as recognized in Ramirez v. Collier, 595 U.S. 411, 424 (2022). Thus, while Congress may enact enforcement legislation pursuant to Section Five, congressional action is not required to give effect to the constitutional provision. See Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (holding that Section Five gives Congress authority to “determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,” but not disputing that the Fourteenth Amendment is self-executing).

¶93 Section Two, moreover, was enacted to eliminate the constitutional compromise by which an enslaved person was counted as only three-fifths of a person for purposes of legislative apportionment. William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. (forthcoming 2024) (manuscript at 51–52), https://ssrn.com/abstract=4532751. The selfexecuting nature of that section has never been called into question, and in the reapportionment following passage of the Fourteenth Amendment, Congress simply treated the change as having occurred. See The Apportionment Act of 1872, 17 Stat. 28 (42nd Congress) (apportioning Representatives to the various states based on Section Two’s command without mentioning, or purporting to enforce, the Fourteenth Amendment). Similarly, Congress never passed enabling legislation to effectuate Section Four.

The Three Dissents

Three justices dissented, each with a separate individual dissenting opinion that was not joined by other justices.

Chief Justice Boatright (FWIW, the son of one of my former employers), summarizes his dissent as follows:

¶258 I agree with the majority that an action brought under section 1-1-113, C.R.S. (2023) of Colorado’s election code (“Election Code”) may examine whether a candidate is qualified for office under the U.S. Constitution. But section 1-1-113 has a limited scope. Kuhn v. Williams, 2018 CO 30M, ¶ 1 n.1, 418 P.3d 478, 480 n.1 (per curiam, unanimous) (emphasizing “the narrow nature of our review under section 1-1-113”). In my view, the claim at issue in this case exceeds that scope. The voters’ (the “Electors”) action to disqualify former President Donald J. Trump under Section Three of the Fourteenth Amendment presents uniquely complex questions that exceed the adjudicative competence of section 1-1-113’s expedited procedures. Simply put, section 1-1-113 was not enacted to decide whether a candidate engaged in insurrection. In my view, this cause of action should have been dismissed. Accordingly, I respectfully dissent.

Justice Samour's dissent basically argues that Colorado's expedited election law proceedings don't afford Trump enough due process and also argues that Section 3 of the 14th Amendment is not self-executing (unlike the other two dissents, arguments that, while procedural are federal law rather than state law issues). This 42 page dissent ends with the following summary:

¶350 Because I cannot in good conscience join my colleagues in the majority in ruling that Section Three is self-executing and that the expedited procedures in our Election Code afforded President Trump adequate due process of law, I respectfully dissent. Given the current absence of federal legislation to enforce Section Three, and given that President Trump has not been charged pursuant to section 2383, the district court should have granted his September 29 motion to dismiss. It erred in not doing so. I would therefore affirm its judgment on other grounds.

Justice Berkenkotter's dissent basically argues that Colorado's election code process isn't expansive enough to allow an insurrection clause challenge. This 25 page dissent opens by stating:

¶351 Today, the majority holds that former President Donald J. Trump (“President Trump”) cannot be certified to Colorado’s presidential primary ballot. Maj. op. ¶ 5. He is, the majority concludes, disqualified from being President of the United States again because he, as an officer of the United States, took an oath to support the Constitution and thereafter engaged in insurrection. See U.S. Const. amend. XIV, § 31; Maj. op. ¶¶ 4–5. In reaching this conclusion, the majority determines as an initial matter that a group of Colorado Republican and unaffiliated electors eligible to vote in the Republican presidential primary (“the Electors”) asserted a proper claim for relief under Colorado’s Election Code (“Election Code”). See §§ 1-1-101 to 1-13-804, C.R.S. (2023); Maj. op. ¶ 57.

1 Section Three of the Fourteenth Amendment is a Civil War era amendment to the United States Constitution that was ratified in 1868. Its aim was to prohibit loyalists to the confederacy who had taken an oath to support the Constitution from taking various state and federal offices. It provides: . . .

¶352 I write separately to dissent because I disagree with the majority’s initial conclusion that the Election Code—as currently written—authorizes Colorado courts to decide whether a presidential primary candidate is disqualified under Section Three of the Fourteenth Amendment to the U.S. Constitution (“Section Three”) from being listed on Colorado’s presidential primary ballot. Maj. op. ¶¶ 62–63, 66. In my view, the majority construes the court’s authority too broadly. Its approach overlooks some of part 12 of the Election Code’s plain language and is at odds with the historical application of section 1-1-113, C.R.S. (2023), which up until now has been limited to challenges involving relatively straightforward issues, like whether a candidate meets a residency requirement for a school board election. Plus, the majority’s approach seems to have no discernible limits.

¶353 To explain why the majority—to my mind—is wrong, first, I explain the process for challenging the listing of a candidate on the presidential primary ballot in Colorado and describe sections 1-1-113 and 1-4-1204(4), C.R.S. (2023), since those sections of the Election Code define the scope of the district court’s authority to hear the case below. Then, I lay out the procedural history of this case. After that, I turn to the question of whether the district court erred in interpreting these two statutes and consider the majority’s analysis with respect to each. In doing so, I conclude that the General Assembly has not granted courts the authority the 3 district court exercised in this case and that the court, accordingly, erred in denying President Trump’s motion to dismiss.

All three of the dissenting opinions are procedural in nature and are specific to issues related to Colorado's laws related to judicial review of the Colorado Secretary of State's decisions under Colorado's election administration laws (two analyze this from a state law perspective and one does so from a federal law perspective).

None of the dissenting justices dispute the Colorado Supreme Court's resolution of the federal Insurrection Clause issue on the merits. In other words, none of the dissents dispute that the facts presented to the trial court are consistent with the possibility that Trump participated in an insurrection, and none of them dispute that the insurrection clause applies to Trump.

As another source explains: "Two of the three dissenting justices did so on the ground that Colorado state election law doesn't give the state courts the authority to decide Section 3 issues." (Hat tip to a comment of Rick Smith to another answer.)

This headline somewhat overstates the case, however, because two of dissenting justices really just held that the particular route used to decide the Section 3 issue under Colorado state election law doesn't extend to deciding Section 3 issues, not that state election law precludes Colorado's state courts from deciding Section 3 issues by any means (i.e. the dissents didn't claim that Section 3 issues are "political questions" which are beyond the competence of state courts to decide).

The third dissent by Justice Samour focused on the constitutional due process adequacy of this particular expedited court process to decide the Section 3 issue. But unlike the other two dissenting opinions, this dissent also does argue that a federal statute must authorize a process to decide the Section 3 issue, a point upon which the trial court judge and the other six of the seven justices considering the case did not agree.

Trump's Official Reaction

For balance, I note Trump's official reaction to this decision about his Presidential candidacy.

Trump said in a statement that he will appeal the ruling to the United States Supreme Court. Trump campaign spokesperson Steven Cheung responded on Trump's behalf as follows:

Unsurprisingly, the all-Democrat appointed Colorado Supreme Court has ruled against President Trump, supporting a Soros-funded, left-wing group's scheme to interfere in an election on behalf of Crooked Joe Biden by removing President Trump's name from the ballot and eliminating the rights of Colorado voters to vote for the candidate of their choice. We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these un-American lawsuits.

Timing And Next Steps

The timing of the case is influenced by the January 6, 2024 deadline for the Colorado Secretary of State to certify the primary election ballot under Colorado's election laws. The decision is stayed until January 4, 2024 to allow Trump to attempt to appeal the decision to the U.S. Supreme Court and to attempt to obtain a further stay of the proceedings from the U.S. Supreme Court, while leaving the Colorado Secretary of State two days to prepare the official Colorado GOP primary ballot if this doesn't happen by then.

If the U.S. Supreme Court grants certiorari and reviews the case, it too will be required to defer to Judge Wallace's factual findings in her trial court opinion and will also be required to treat the decisions of the Colorado Supreme Court in the case on questions of state law as correct by definition.

A U.S. Supreme Court review of the decision would be limited to questions of federal law including how the U.S. Constitution, as amended, is interpreted.

If SCOTUS denied cert, this ruling on Trump's eligibility could have collateral estoppel effect that would bind Trump in every other state.

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    The last paragraph ("If SCOTUS denied cert, ...") could use some simple English. Perhaps, "If SCOTUS declines to hear the appeal of Colorado's decision, then under the Constitution's Full Faith and Credit Clause, Art. IV § 1, all other states will be required to remove Trump's name from all Republican primaries which would end Trump's re-election bid."
    – Rick Smith
    Dec 21, 2023 at 1:48
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    @RichSmith I ran out of words allowed in an answer so I had to remove the simple English explanation. It is slightly more complicated than your version (somebody has to sue to make it happen, since collateral estoppel isn't self-executing), but that is basically the idea.
    – ohwilleke
    Dec 21, 2023 at 1:54
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    @sfxedit He has been found by a preponderance of the evidence to have engaged in the conduct that disqualifies him under Section 3. This is not guilt in a criminal matter. A criminal proceeding is pending against him in the District of Columbia in which he has been indicted by a grand jury and is facing charges for the events of January 6.
    – ohwilleke
    Dec 21, 2023 at 22:04
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    @sfxedit No. It say that if someone is an insurrectionist that they are disqualified. And, when a court finds by the preponderance of the evidence that is required in a civil case that someone is an insurrectionist, then that requirement is met. There does not have to be (and historically hasn't been most of the time in Section 3 cases) a criminal case ever.
    – ohwilleke
    Dec 21, 2023 at 22:51
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    The civil consequence of a finding that you were engaged in insurrection under Section 3 is that you can't hold any legislative, executive, or judicial position in the government at the federal, state, or local level ever. The penalty for a crime usually includes incarceration, a fine, and sometimes, also the same disqualification from holding public office, as set forth in the statutes. The DC charges as of 8/1/23 are described at npr.org/2023/08/01/1191493880/… and don't include insurrection itself, so it wouldn't have Section 3 effect.
    – ohwilleke
    Dec 21, 2023 at 23:39
9

Question:

How did the Colorado Supreme Court justify extending Section 3 of 14th amendment to the president?

Short Answer:

Colorado Supreme Court decision page 77

A conversation between two Senators in 1866 as they were writing the 14th amendment

Senators Reverdy Johnson Democrate Maryland: worried that the final language of article 3 did not include the office of the Presidency. He stated, "This amendment does not go far enough" because past rebels "may be elected President or Vice President of the United States". So, he asked, "why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation".

Senator Lot Morrill Republican Maine: fielded this objection. He replied, "Let me call the Senator's attention to the words 'or hold any office civil or military, under the United States'"

Objective Facts:

  1. Colorado District Judge Sarah Wallace ruled in Nov 2023 that former President Donald Trump “engaged in an insurrection” on January 6, 2021.

  2. Colorado Supreme Court agreed with Judge Sarah Wallace ruling that President Trump "engaged in an insurrection".

Answer:

Just because no President has participated and thus suffered the consequences of participating in insurrection doesn’t equate to a legal precedent.

The Fourteenth Amendment was created and employed to keep insurrectionists from being eligible for government office after the Civil war. In the following 160 years congress has chosen to leave the 14th active. The Colorado lower court found President Trump participated in insurrection. The Colorado Supreme Court agreed and added that the presidency was covered by the 14th amendment either as an officer of the United States, or as an executive officer. Given according to them, it is impossible to believe the writers of the 14th amendment would exclude the presidency.

Net result: the Supreme Court will ultimately weigh in and decide this issue. Given trump is a documented insurrectionist twice over it will be extremely difficult for the Supreme Court to overturn that finding, what still remains debatable is the President is an officer of the United States. That is what the supreme court will ultimately decide. But if the original intentions of the authors of the Constitution is their most important guide, then their doesn't seem to be a question. Or if logic and common sense are a guide; Their also doesn't seem to be a good reason to allow an insurrectionist who betrayed his oath to protect the Constitution to be permitted to take another such oath.

6
  • 1
    So the majority opinion for how it extends to the presidency boils down to it being impossible for the justices to believe the writers of the 13th amendment wouldn't want it to? Then to the rest of my the question "How did the minority opinion argue against this?" is the answer simply "it is very possible if not likely to believe that they wouldn't want it to, because the authors didn't say it did"?
    – uhoh
    Dec 20, 2023 at 7:31
  • 2
    @uhoh Unless the minority has published their dissenting opinion, we wouldn't know.
    – Greendrake
    Dec 20, 2023 at 9:00
  • 4
    I think this answer could be improved by quoting from the judgement and the dissenting minority opinions (linked in the question). Paragraph 159 would be pretty good for supporting your answer so far: "President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three."
    – CDJB
    Dec 20, 2023 at 9:35
  • 15
    Trump was not "found guilty of participating in insurrection by the CO lower court." Guilty verdicts are made in criminal cases. The referenced case was a civil case. In Anderson, et al. v. Griswald, 2023CV32577, at 298, "the Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement", is a conclusion based on preponderance of evidence; not a finding of guilt.
    – Rick Smith
    Dec 20, 2023 at 15:03
  • " In the following 160 years congress has chosen to leave the 14th active. " Congress does not have the option to make an amendment not active. Jan 6 at 6:05
6

Question:

How did the Colorado Supreme Court justify extending Section 3 of 14th amendment to the presidency? How did the minority opinion argue against this?

I'm adding this answer now that the Colorado Supreme Court's findings is available.

Short Answer

Colorado district court ruled the Disqualification Clause of Section 3 of the 14th Amendment does not apply to the presidency because:

  1. The Presidency is not specifically mentioned in Section 3 of the 14th Amendment.
  2. The Presidency was mentioned in previous drafts but excluded from the final draft.

In disagreeing the Supreme Court makes six points.

  1. The word office at the time of the writing of the 14th amendment based on contemporary dictionaries suggest the Presidency is an office of the United States. The contemporary definitions of the authors have more weight than newer definitions not known to the authors.

  2. The Presidency is not mentioned while Senators and Congressmen and Presidential Elector's are mentioned. This is because Senators and Congressmen under the Constitution are not offices but the President and Vice President Are.

  3. The Constitution itself refers to the Presidency as an “Office” twenty-five times.

  4. On the Presidency being dropped from the final draft. The S.C of Colorado found based upon the quotes of the man responsible for the change of wording; he still believed it applied to the Presidency and his revision was to eliminate a redundancy, not to exclude the Presidency based upon his contemporary quotes.

  5. Based upon discussions between two Senators voting on the 14th Amendment they believed its section 3 applied to the Presidency and stated such.

  6. Reconstruction-Era citizens, supporters and opponents also believed that Section 3 of the 14th Amendment applied to the Presidency.

Answer More comprehensive paraphrasing of the decision.

Page 70, 1. The Presidency Is an Office Under the United States.

Colorado district court ruled the Presidency is not an officer Under the United States.

  1. First, the court noted that the Presidency is not specifically mentioned in Section Three, though senators, representatives, and presidential electors are. The court found it unlikely that the Presidency would be included in a catch-all of “any office, civil or military.”
  2. Second, the court found it compelling that an earlier draft of the Section specifically included the Presidency, suggesting that the drafters intended to omit the Presidency in the version that passed.

We disagree with the district court’s conclusion, as our reading of both the constitutional text and the historical record counsel that the Presidency is an “office . . . under the United States” within the meaning of Section Three.

  1. When interpreting the Constitution, we prefer a phrase’s normal and ordinary usage over “secret or technical meanings that would not have been known to ordinary citizens in the founding generation.” District of Columbia v.Heller, 554 U.S. 570, 577 (2008).

Dictionaries from the time of the Fourteenth Amendment’s ratification define “office” as

  • a “particular duty, charge or trust conferred by public authority, and for a public purpose,” that is “undertaken by . . . authority from government or those who administer it.”
  • Noah Webster, An American Dictionary of the English Language 689 (Chauncey A. Goodrich ed., 1853);
  • Johnson’s English Dictionary 646 (J.E. Worcester ed., 1859) (defining “office” as “a publick charge or employment; magistracy”); United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747) (“An office is defined to be ‘a public charge or employment,’ . . . .”).

The Presidency falls comfortably within these definitions.

  1. We do not place the same weight the district court did on the fact that the Presidency is not specifically mentioned in Section Three. It seems most likely that the Presidency is not specifically included because it is so evidently an “office.” In fact, no specific office is listed in Section Three; instead, the Section refers to “any office, civil or military.” U.S. Const. amend. XIV, .3.

True, senators, representatives, and presidential electors are listed, but none of these positions is considered an “office” in the Constitution. Instead, senators and representatives are referred to as “members” of their respective bodies. See U.S. Const. art. I, § 5, cl. 1 (“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .”); id. at § 6, cl. 2 (“[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”); id. at art. II, § 1, cl. 2 (“[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”).

  1. even Intervenors do not deny that the Presidency is an office. Instead, they assert that it is not an office “under the United States.” Their claim is that the President and elected members of Congress are the government of the United States, and cannot, therefore, be serving “under the United States.” Id. at amend. XIV, § 3.

We cannot accept this interpretation. A conclusion that the Presidency is something other than an office “under” the United States is fundamentally at odds with the idea that all government officials, including the President, serve “we the people.” Id. at pmbl. A more plausible reading of the phrase “under the United States” is that the drafters meant simply to distinguish those holding federal office from those held “under any State.” Id. at amend. XIV, § 3. This reading of the language of Section Three is, moreover, most consistent with the Constitution as a whole.

The Constitution refers to the Presidency as an “Office” twenty-five times.

  • . at art. II, § 1, cl. 5 (providing that “[n]o Person except a natural born Citizen . . . shall be eligible to the Office of President” and “[t]he executive Power shall be vested in a President of the United States of America [who] shall hold his Office during the Term of four Years” (emphases added)). And it refers to an office “under the United States” in several contexts that clearly support the conclusion that the Presidency is such an office.
  • Consider, for example, the Impeachment Clause, which reads that Congress can impose, as a consequence of impeachment, a “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Id. at art. I, § 3, cl. 7. If the Presidency is not an “office . . . under the United States,” then anyone impeached—including a President—could nonetheless go on to serve as President.

This reading is nonsensical, as recent impeachments demonstrate. The Articles of Impeachment brought against both President Clinton and President Trump asked for each man’s “removal from office[,] and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” Articles of Impeachment Against William Jefferson Clinton, H. Res. 611, 105th Cong. (Dec. 19, 1998); see also Articles of Impeachment Against Donald J. Trump, H. Res. 755,

  • Similarly, the Incompatibility Clause states that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” U.S. Const. art. I, § 6, cl. 2. To read “office under the United States” to exclude the Presidency would mean that a sitting President could also constitutionally occupy a seat in Congress, a result foreclosed by basic principles of the separation of powers.
  • Finally, the Emoluments Clause provides that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” U.S. Const. art. I, § 9, cl. 8. To read the Presidency as something other than an office under the United States would exempt the nation’s chief diplomat from these protections against foreign influence. But Presidents have long sought dispensation from Congress to retain gifts from foreign leaders, understanding that the Emoluments Clause required them to do so.
  1. The district court found it compelling that an earlier draft of the proposed Section listed the Presidency, but the version ultimately passed did not. Anderson,¶ 303. As a starting point, however, we are mindful that “it is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.” Heller, 554 U.S. at 590. And the specifics of the change from the

earlier draft to what was ultimately passed do not demonstrate an intent to exclude the Presidency from the covered offices.¶138 The draft proposal provided that insurrectionist oath-breakers could not hold “the office of President or Vice President of the United States, Senator or Representative in the national Congress, or any office now held under appointment from the President of the United States, and requiring the confirmation of the Senate.” Cong. Globe., 39th Cong., 1st Sess. 919 (1866) (emphasis added). Later versions of the Section—including the enacted draft—removed specific reference to the President and Vice President and expanded the category of office-holder to include “any office, civil or military” rather than only those offices requiring presidential appointment and Senate confirmation. See U.S. Const. amend. XIV, § 3.

¶139 It is hard to glean from the limited available evidence what the changes across proposals meant. But we find persuasive amici’s suggestion that Representative McKee, who drafted these proposals, most likely took for granted that his second proposal included the President. While nothing in Representative McKee’s speeches mentions why his express reference to the Presidency was removed, his public pronouncements leave no doubt that his subsequent draft proposal still sought to ensure that rebels had absolutely no access to political power. representative McKee explained that, under the proposed amendment, “the loyal alone shall rule the country” and that traitors would be “cut[] off . . . from all political power in the nation.”

  1. The importance of the inclusive language—“any officer, civil or military”— was the subject of a colloquy in the debates around adopting the Fourteenth Amendment. Senator Reverdy Johnson worried that the final version of Section Three did not include the office of the Presidency. He stated, “[T]his amendment does not go far enough” because past rebels “may be elected President or Vice President of the United States.” Cong. Globe, 39th Cong., 1st Sess. 2899 (1866). So, he asked, “why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation.” Id. Senator Lot Morrill fielded this objection. He replied, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” Id. This answer satisfied Senator Johnson, who stated, “Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives.” Id. This colloquy further supports the view that the drafters of this Amendment intended the phrase “any office” to be broadly inclusive, and certainly to include the Presidency.

  2. Reconstruction-Era citizens—supporters and opponents of Section Three alike—understood that Section Three disqualified oath-breaking insurrectionists from holding the office of the President. See Montpelier Daily Journal, Oct. 19, 1868 (writing that Section Three “excludes leading rebels from holding offices . . . from the Presidency downward”). Many supporters of Section Three defended the Amendment on the ground that it would exclude Jefferson Davis from the Presidency. See John Vlahoplus, Insurrection, Disqualification, and the Presidency, 13 Brit. J. Am. Legal Stud. (forthcoming 2023) (manuscript at 7–10), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4440157; see also, e.g., Rebels and Federal Officers, Gallipolis J., Feb. 21, 1867, at 2 (arguing that foregoing Section Three would “render Jefferson Davis eligible to the Presidency of the United States,” and “[t]here is something revolting in the very thought”). ¶142 Post-ratification history includes more of the same. For example, Congress floated the idea of blanket amnesty to shield rebels from Section Three. See Vlahoplus, supra, (manuscript at 7–9). In response, both supporters and dissenters acknowledged that doing so would allow the likes of Jefferson Davis access to the Presidency. See id.; see also, e.g., The Pulaski Citizen, The New Reconstruction Bill, Apr. 13, 1871, at 4 (acknowledging as a supporter of amnesty that it would “make even Jeff. Davis eligible again to the Presidency”); The Chicago Tribune, May 24, 1872 (asserting that amnesty would make rebels “eligible to the Presidency of the United States”); Indiana Progress, Aug. 24, 1871 (similar).

From the Comments:

@uhoh: "How did the minority opinion argue against this?

The vote was Four to Three. The three justices who were in the minority — Chief Justice Brian Boatright and Justices Carlos Samour and Maria Berkenkotter — each wrote their own opinions dissenting with the ruling. They each took issue with the Colorado law being used to address the 14th amendment case. Each felt that an abbreviated process geared to rule on quantifiable disqualification metrics like age, natural birth and deration of residency were insufficient to rule on the 14th Amendment insurrection case. Such a case they felt was vastly more complex and to abbreviate the hearing would violate due process.- Chief Justice Brian Boatright starting on page 135(11 pages total), writing 1 of the 3 minority opinions agreed with the majority that the court had the authority to ban President Trump from the ballot. His two primary objections are:

  1. Trump was not convicted of insurrection.
  2. The Colorado law framework for hearing a Constitutional 14th amendment: section 3 case is impossible.

Conclusion:

My opinion that this is an inadequate cause of action is dictated by the facts of this case, particularly the absence of a criminal conviction for an insurrection related offense. The questions presented here simply reach a magnitude of complexity not contemplated by the Colorado General Assembly for its election code enforcement statute. The proceedings below ran counter to the letter and spirit of the statutory timeframe because the Electors’ claim overwhelmed the process. In the absence of an insurrection-related conviction, I would hold that a request to disqualify a candidate under Section Three of the Fourteenth Amendment is not a proper cause of action under Colorado’s election code. Therefore, I would dismiss the claim at issue here. Accordingly, I respectfully dissent

  • Justice Carlos Samour see page 146.
  1. Due Process. The expedited nature of the hearing fails to allow for due process given the complexity and consequences of the case.

: Our government cannot deprive someone of the right to hold public office without due process of law. Even if we are convinced that a candidate committed horrible acts in the past—dare I say, engaged in insurrection—there must be procedural due process before we can declare that individual disqualified from holding public office. Procedural due process is one of the aspects of America’s democracy that sets this country apart.

Justice Maria Berkenkotter page 189

  • Disagree's the Colorado Law allows the State justices to disqualify candidates under the 14th Amendment. Again Due process.

I write separately to dissent because I disagree with the majority’s initial conclusion that the Election Code—as currently written—authorizes Colorado courts to decide whether a presidential primary candidate is disqualified under Section Three of the Fourteenth Amendment to the U.S. Constitution (“Section Three”) from being listed on Colorado’s presidential primary ballot. Maj. op. ¶¶ 62–63, 66. In my view, the majority construes the court’s authority too broadly. Its approach overlooks some of part 12 of the Election Code’s plain language and is at odds with the historical application of section 1-1-113, C.R.S. 2023), which up until now has been limited to challenges involving relatively straightforward issues, like whether a candidate meets a residency requirement for a school board election. Plus, the majority’s approach seems to ave no discernible limits.

4
  • This is very illuminating - thank you for going through the finding for us in such detail! It seems they did in fact work quite hard to "justify extending Section 3 of 14th amendment to the presidency." And it seems they did a pretty good job of it. As to "How did the minority opinion argue against this?" is the minority opinion available - did they argue against this point?
    – uhoh
    Jan 2 at 22:34
  • 1
    @uhoh, I’ll look int that. Good question.
    – JMS
    Jan 2 at 23:39
  • 1
    @uhoh, responded at the bottom of this answer. Basically all three objected to the Colorado Law used to hear the 14-3 disqualification case. The Colorado laws condensed case schedule they each felt did not provide President Trump with Due Process. Thus they found regardless of the facts, the case was just beyond the schedules ability to execute. Each wrote their own opinions but that's the 20,000 foot summary.
    – JMS
    Jan 3 at 17:30
  • 2
    Since you've read through these documents and they reference that earlier draft which explicitly included the President, would you be able to track down the actual text/context for that draft and answer my question here? I've seen it mentioned in several places, but never the actual example.
    – Bobson
    Jan 3 at 17:37
-8

Well, well, well. 9-0. Even quoted the same cases I did, too:

https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf

SCOTUS quoting the very case I all but explicitly said they would:

Such power over governance, however, does not extend to federal officeholders and candidates. Because federal offic- ers “ ‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’ ” powers over their election and qualifications must be specifically “dele- gated to, rather than reserved by, the States.” U. S. Term Limits, Inc. v. Thornton, ...

That was to support this:

This case raises the question whether the States, in addi- tion to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal of- fices, especially the Presidency.

As I wrote months ago:

Note that the 14th Amendment's Section 5 does not give power to the states, explicitly stating "The Congress shall have the power to enforce...".

That's important - you'll see why later.

Original answer (and I nailed it)

How did the Colorado Supreme Court justify extending Section 3 of 14th amendment to the presidency?

TLDR Summary:

They didn't. They literally ignored specific case law to create additional requirements for the Federal office of President.

In multiple US Supreme Court decisions, attempts to add requirements for mere Representatives have uniformly been found unconstitutional and illegal. Yet the Colorado Supreme Court decided to do just that, without citing any law or decision.

Full Answer:

The enforcement of the 14th Amendment's Section 3 is per 18 U.S. Code § 2383 - Rebellion or insurrection:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

Congress had the power to enact this law per Amendment 14, Section 5

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

This sets the manner in which "rebellion and insurrection" shall be handled - a federal criminal case. Not a state civil case.

Note that the 14th Amendment's Section 5 does not give power to the states, explicitly stating "The Congress shall have the power to enforce...".

That's important - you'll see why later.

First, Colorado claiming that power flies directly in the face of 1995's Supreme Court decision in U.S. Term Limits, Inc. v. Thornton

States cannot impose additional restrictions, such as term limits, on its representatives in the federal government beyond those provided by the Constitution.

The Colorado Supreme Court tries to handwave that away with

All that means, however, is that a person charged and convicted under 18 U.S.C. § 2383 would also be disqualified under Section Three. It cannot be read to mean that only those charged and convicted of violating that law are constitutionally disqualified from holding future office without assuming a great deal of meaning not present in the text of the law.

That's it. That is their only justification to create a new limitation on who can be President, despite Thornton clearly stating states do not have the right to do that for mere Representatives.

Not a single cite for a theory that directly contradicts not only the decision in U.S. Term Limits, Inc. v. Thornton, but also 1969's Powell v. McCormack:

An individual who meets the constitutional requirements for being a member of the House of Representatives may not be denied a seat there upon being properly elected.

along with 2001's Cook v. Gralike:

... Article VIII thus attempts to “dictate electoral outcomes.” U.S. Term Limits, 514 U.S., at 833—834. Such “regulation” of congressional elections is not authorized by the Elections Clause. Pp. 11—15

Note also that Cook v. Gralike directly addresses any claim under the 10th Amendment:

the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution did not delegate to them.

Rules for Presidential elections are not "reserved to the states" under the 10th Amendment.

So no, Colorado does not have the power to enforce the 14th Amendment's "insurrection" clause via civil trial. And the Colorado Supreme Court didn't even try to justify it beyond a single, short "it doesn't say we can't" claim.

35
  • 14
    Your legal analysis is deeply deficient. Section 3 of the 14th Amendment is a constitutionally prescribed qualification for office so U.S. Term Limits and Powell do not apply. The Court's reasoning on criminal conviction not being the only available reason is likewise solid. Most Section 3 disqualifications have been in civil cases. State courts, in particular, have done so in at least three historical cases: There is precedent for it being used by State Courts both in the 19th century against, Kenneth H. Worthy, William L. Tate and the 21st century against Couy Griffin.
    – ohwilleke
    Dec 20, 2023 at 19:36
  • 12
    It comes from Section 3 of the 14th Amendment to the U.S. Constitution which it didn't enact. Your interpretation of the meaning of Section 5 of the 14th Amendment as making the 14th Amendment not self-executing, is contrary to a mountain of state and federal law applying the 14th Amendment directly without federal implementing legislation.
    – ohwilleke
    Dec 20, 2023 at 20:21
  • 10
    I'm not going to moderate your answer, since I am so actively involved in answering this thread myself and I don't want to abuse my moderator authority. But I note that the question is: "How did the Colorado Supreme Court justify extending Section 3 of 14th amendment to the presidency? How did the minority opinion argue against this?" It isn't asking if the Colorado Supreme Court was right or wrong. It is asking what arguments were advanced by the majority and by the dissents. This answer goes far beyond answering this question.
    – ohwilleke
    Dec 20, 2023 at 21:15
  • 8
    @JustMe The U.S. Supreme Court has said that the Fourteenth Amendment “is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” The Civil Rights Cases, 109 U.S. 3, 20 (1883). This remains good law.
    – ohwilleke
    Dec 20, 2023 at 23:35
  • 6
    @JustMe It considered and rejected that argument. See ¶¶ 127-161. Indeed, this is the only point upon which the trial court's ruling was overruled. The arguments that the President is an officer of the United States are strong. The constitution refers to his position as an "office" many times. He is the commander in chief, a classic "office." And, any other interpretation makes no logical sense and isn't supported by the legislative history of the 14th Amendment. If SCOTUS were to reverse on that ground it would compromise its legitimacy further, damaging the institution itself.
    – ohwilleke
    Dec 21, 2023 at 0:26

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