Home » News » News analysis: Why Trump was removed from Colorado ballot

By John R. Vile, published on December 23, 2023

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Former President Donald Trump. (AP Photo/Seth Wenig, pool, file)

On Nov. 17, Judge Sarah B. Wallace, a state district judge in Colorado, issued a mixed ruling in Anderson v. Griswold. She decided that although former president Donald Trump had incited the violent actions at the U.S. Capitol on Jan. 6, 2021, Colorado did not have the right to exclude him from the Republican primary ballot under Section 3 of the 14th Amendment (1868).

That provision prohibited designated individuals including those who ”hold any office . . . under the United States, or under any State,” who in violation of their oaths had “engaged in insurrection or rebellion” against the US or “given aid or comfort to the enemies thereof” to hold future office.

Judge Wallace decided that the exclusion did not apply to past presidents because they did not fit the constitutional definition of having been an “officer” under the United States.

Court: Trump was an officer of the U.S. when he sparked Capitol riot

On Dec. 19, 2023, in a 4-3 ruling, the Colorado Supreme Court affirmed Wallace’s judgment that Trump had sparked such an insurrection on Jan. 6, 2021, while deciding, chiefly based on what it considered to be the “plain language” of the Constitution, that Trump was an officer of the U.S. and that he should be excluded from the Republican primary ballot. Moreover, it further ruled that Jena Griswold, the Colorado Secretary of State, could not count votes for Trump, even if they were cast as write-in ballots.

The court did, however, stay, or pause, taking Trump’s name off the primary ballot, until the U.S. Supreme Court decides whether to review the case. The Colorado case is extraordinary because other state courts that had examined the issue had decided that the ballot access issue was either not yet ripe for adjudication or that it was a “political question” for Congress to resolve.

The Colorado Supreme Court decision hinges on a number of key issues. In addition to involving whether Trump aided an insurrection, the court had to decide on the meaning of key precedents:

  • on remedies provided under state law,
  • on whether Trump had been given due process in the case (something dissenting justices disputed, based in part on what they argued was Colorado’s failure to meet required legal deadlines),
  • on whether the provisions of Section 3 of the 14th Amendment were self-enforcing,
  • on whether – absent legislation – the provision could act both as a shield or a sword against abuse or only as the former, and
  • on whether a state could enforce the provision absent congressional authorization to do so.

Removing Trump from ballot raises questions of freedom of association

The decision also involved at least two First Amendment issues.

Because this case involves placement on the ballot of a primary, as opposed to a general, election, it raised First Amendment issues of freedom of association. The Colorado court thus observed that “Partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments.” The court did not, however, think that this right extended to voting for an individual who would be excluded by the provisions of Section 3 of the 14th Amendment.

The second issue involved whether Trump was being excluded for the legitimate exercise of his First Amendment right to freedom of speech. Although the Colorado Supreme Court accepted the lower court’s argument that his freedom of speech had not been violated, it engaged in its own review of his speech, relying heavily on the congressional report on the events of January 6. It observed that the First Amendment did not protect “true threats,” “speech essential to criminal conduct,” or “speech that incites lawless action. In so doing, it paid particular attention to the Supreme Court decision in Brandenburg v. Ohio (1969), where it had ruled that the speaker at a rally of the Ku Klux Klan had not engaged in such speech.

The court ruled that Brandenburg and subsequent cases had established that ascertaining whether a speech had incited or provoked imminent lawless action involved three considerations. These were “whether (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intended that the speech would result in the use of violence or lawless action; and (3) the imminent use of violence or lawless action was the likely result of the speech.”

In deciding that Trump’s speech met all three criteria for incitement to imminent lawless action, the Colorado Supreme Court found it necessary not simply to examine Trump’s speech on Jan. 6, but in its wider context. This included Trump’s advocacy of violence in other contexts, his role in summoning individuals to Washington, D.C. on Jan. 6, his knowledge of the ”potential for violence” on this occasion, and the inflammatory nature of the speech that he gave there.

Trump appeals Colorado ballot exclusion to Supreme Court

Trump has already indicated that he plans to appeal this decision to the U.S. Supreme Court, to which Trump has appointed three justices. Even if the Supreme Court should decide that the Colorado Supreme Court should not have excluded him from the primary ballot under Section 3 of the 14th Amendment, the court’s finding that Trump incited the Capitol riot will likely be cited in state and federal cases involving whether Trump was involved in an illegal conspiracy or in racketeering to thwart the 2020 presidential election results. The Supreme Court may also have to decide whether Trump has immunity for actions he took while serving as president.




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