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“A Sad Day”: How the Colorado Disqualification Case is Bringing Back Bad Memories for the Supreme Court

Below is my column in The Messenger on the challenge facing the Supreme Court in the coming week over the electoral disqualification of former president Donald Trump in Colorado and Maine. The appeal in Maine has been filed and can now work its way up to the Court. Colorado is expected to file with the Court this week. If the Court does not act before Jan. 4th, Colorado could seek to moot any appeal and avoid review. It would then depend on the Maine litigation to bring the matter back to the Court.

Here is the column:

It is “a sad day for America and the Constitution when a court decides the outcome of an election.” Those words, condemning a 4-3 decision by state supreme court justices regarding a presidential election, undoubtedly spoke for millions of Americans.

However, it wasn’t a reference to the Colorado Supreme Court’s recent 4-3 decision to disqualify Donald Trump from running in the 2024 election. Instead, it was a statement by James Baker, then a spokesman for Republican presidential candidate George W. Bush, criticizing the Florida Supreme Court’s decision during the 2000 election.

Of course, the condemnations in 2000 would shift to the U.S. Supreme Court, when it stopped the recount ordered by the four Florida justices and effectively called the election for Bush. Then, it was the left condemning the U.S. justices as being, in the words of law professor Cass Sunstein, “illegitimate, undemocratic, and unprincipled.”

Even the justices appeared to lose some of their customary collegiality and civility in the moment. Then-Justice Ruth Bader Ginsburg famously omitted the customary word “respectfully” before the phrase “I dissent” at the end of her opinion.

Now, the Supreme Court is being pulled into another election vortex by the Colorado decision and, potentially, by some of the cases in at least 15 other states. (Appeals of ballot decisions are pending in Arizona; ballot challenges are in process in Alaska, Maine, New York, New Jersey, Nevada, New Mexico, Oregon, South Carolina, Texas, Vermont, Virginia, West Virginia and Wyoming. A Wisconsin challenge has been denied twice.)

Colorado and now Maine remain outliers after the Michigan Supreme Court rejected another disqualification effort in that state. Last Wednesday, the Colorado GOP appealed to the U.S. Supreme Court, which is expected to accept the case given the split among the states and the importance of the issue. Politicians on both sides of the aisle have criticized the decision by Maine’s secretary of state and urged that the courts overturn it. But the two states’ decisions — and the risk of others joining them — underscores the imperative need for the nation’s high court to decide the issue once and for all.

The Court is not an institution eager for this role. The ruling in Bush v. Gore produced one of the greatest institutional crises in the Court’s history, and the impact reverberated for decades. As someone covering the 2000 opinion as a CBS News legal analyst at the time, I was taken aback by how the motivations and even the integrity of the justices was challenged in reaching their decision. In the New Republic, for example, the majority was denounced and dismissed by Jeff Rosen as simply “four vain men and one vain woman.”

I am not the only one with vivid memories of that day. One justice from the 2000 majority still sits on the Court: Clarence Thomas. While many have called for him to recuse himself, he will likely vote with the rest of the Court if he follows past practices.

Three other justices have their own connections to Bush v. Gore.

Chief Justice John Roberts was then a Republican lawyer who helped present Bush’s case to the Florida Supreme Court and advised the Bush campaign on its U.S. Supreme Court challenge. President Bush later put Roberts on the U.S. Court of Appeals for the District of Columbia.

Notably, during his confirmation hearing, Roberts said he believed that “the particular parameters in [Bush v. Gore] won’t” return to the court. He then said it would be “inappropriate” for him to comment further on such “very recent precedent.”

Justice Brett Kavanaugh also was an attorney on the Bush team in 2000 and played a role in the recounts and challenges out of Volusia County, Florida.

At the time, another rising star in Republican legal circles was getting her start as a young law firm associate. Amy Coney Barrett worked on the briefing for Bush v. Gore and went to Florida briefly during the recount litigation.

Roberts is correct that the “particular parameters” of Bush v. Gore are unlikely to return to the Court with its “hanging chads” and “butterfly ballots.” However, there are some echoes of that earlier fight in the coming battle over whether Trump can be barred from appearing in state presidential-election ballots.

Kavanaugh said in a CNN interview that the Court was primarily concerned about “the arbitrary, standard-less nature of the recount process in Florida.” There is likely to be a similar unease over the use of the Constitution’s 14th Amendment and classification of the Jan. 6, 2021, riot as an “insurrection” by four Colorado state justices.

The Court’s member who would most want this cup to pass from his lips is, undoubtedly, Chief Justice Roberts. As a fierce institutionalist, Roberts is known to resist putting the Court in the middle of powerful political currents. Even on issues like abortion, Roberts stood alone in trying to eke out a compromise of preserving Roe v. Wade while upholding more stringent state abortion laws.

Although Roberts is not beyond joining sweeping decisions like the recent rejection of race criteria in college admissions, he tends to be an incrementalist who does not like the Court getting ahead of its skis in rendering final legal decisions on matters of ongoing political debates.

In that sense, everything about the Colorado case is likely to repel Roberts, but he may have little room to maneuver with the politically shortened calendar and the major impact of the state decision. While there is a potential mootness “exit ramp” from review of the Colorado decision, the Maine decision will eventually force the issue again for the Court after lower court reviews.

The greatest test for Roberts may not be simply to marshal a majority to overturn this ruling. Many of us view the 14th Amendment theory to be not just fundamentally flawed but incredibly dangerous. There are a host of elements in the Colorado decision that could easily result in a reversal — from the potential application of the provision to the office of the president, to the conclusory treatment of the Jan. 6 riot as a rebellion, to the casual dismissal of Trump’s free-speech rights.

Yet, Roberts has previously noted that one of the toughest jobs as chief justice comes with the effort to secure unanimous decisions in key cases. This is one of those cases.

The Colorado Supreme Court was wrong on the law, but the case raises the same institutional challenges as Bush v. Gore. Back in 2000, the Court fractured and left a bitter legacy for both the justices and the public. Faced with another controversial 4-3 decision by a state supreme court during a presidential election, Roberts will need to seek more than just a final decision. He will likely push hard for a unanimous decision, to have the Court speak in one voice to avoid the bitter fracturing of 2000.

It could prove to be the finest moment for the Roberts court if the chief justice succeeds and all of the justices can show Americans that they can set aside their own divisions to affirm core principles of the democratic process. They can speak as one, not just for the Court but for the country.

Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School. He teaches a course on the Supreme Court and the Constitution.

399 thoughts on ““A Sad Day”: How the Colorado Disqualification Case is Bringing Back Bad Memories for the Supreme Court”

  1. Don’t the voters deserve to know the whole truth about the corrupt Biden grifting machine before voting in November? Don’t we equally deserve to know how far Trump was willing to go to block Biden’s Inauguration?
    Both scandals have been only partially revealed, the full depth of misdeeds successfully covered-up.

    Getting to the truth, the whole truth, and nothing but the truth BEFORE the next election is essential in both cases.
    This can only be accomplished in Courts of Law — under strict rules of evidence, adversarial argument, and a jury as finders-of-fact — the place where lies go to die and liars go to be held liable. And it’s obvious both major candidates are shameless liars.

    It’s up to The People to insist on trial by court-of-law to expose both the Trump and Biden cover-ups with no more delays.

  2. Svelass aka Mr Peetape says:

    “That does not mean one must already be in office to be ineligible. Only that they have engaged in it or aided in it to be deemed ineligible to hold any office. You don’t have to be running for office either. Just participating in an insurrection renders anyone ineligible to hold office.”

    Another lie from Svelaz. The 14th applies only to people previously under oath (in office). It does not apply to “anyone”.

    He just cant stop stepping in his own doo doo.

  3. Was the fabricated Russian Collusion investigation an insurrection?
    Were the impeachment hearings an insurrection aimed at Trump for mentioning Ukrainian corruption after a video with Biden bragging about withholding aid unless the prosecutor who investigated Hunter Biden’s influence peddling appointment was fired?
    Is the Biden administration’s ignoring immigration law and flinging open our border for an invasion by undocumented immigrants an insurrection?
    The courts failed to allow hearings on the widespread, organized election fraud consisting of voter ID theft, fraudulent ballots, unconstitutional changes to States mail in voting regulations, rigged or hacked machines, election site misconduct, and manipulated (hockey stick) vote tabulations. They condoned an insurrection corrupting our 2016 election to oust Trump.
    The most malevolent act of insurrection was the Biden administration throwing out every regulatory safeguard and poisoning the public with the falsely advertised Covid 19/SARS2 “vaccines” which have caused unprecedented injuries, disabilities, fertility problems, and deaths.
    Biden’s money grubbing and national security violations should disqualify him. Comparing the Biden violations to the Trump family’s continued operation of their hotel and resort properties is laughable.

  5. I am less optimistic that the Court will do the right thing and return a unanimous decision rejecting the Colorado fallacy. I suspect it will be 7-2. Kagan being a brilliant legal mind will have no trouble but Sotomayor who is the equivalent of the slow relative who lives at home well into her adult life, will vote her ideology. Brown-Jackson the DEI hire, may feel obligated to vote as required by her sponsors, but there may be hope for her and we could see 8-1.
    I don’t see anyone being able to explain it to “Sonja from the Bronx” in a way that she can understand it.

    1. SCOTUS will NOT interpose themselves as election outcome deciders, nor as individual candidacy deciders.

      That leaves the only real option as defining the legal standard that must be met to establish guilt in cases of participation in an insurrection. A safe bet would be to hand the question to a jury trial. It needs to be an adversarial process, with strict rules of evidence, disallowing delay as a defensive tactic. It might be better brought as a Civil Lawsuit than a federal or state prosecution, since you don’t want a corrupt government officials to have non-prosecution powers.

      A unanimous jury acting as finders-of-fact, directly addressing the questions of insurrection and active participation, should stand as the final judgment able to trigger 14(3). Since findings-of-fact are not appealable, there is finality – important as a check on process delay. The voters deserve the truth BEFORE casting their votes, otherwise “the consent of the governed” is put into serious question.

      1. PbinCA, you are looking for a jury to incarcerate your rivals but will leave your friends alone.

  6. Trump received at least $7.8M from 20 foreign governments during his presidency, according to new documents released today. Over $5M came from China. Saudi Arabia was the second-largest spender.

    “The transactions, detailed in a 156-page report called ‘White House For Sale’ that was produced by Democrats on the House Oversight Committee, offer concrete evidence that the former president engaged in the kind of conduct that House Republicans have labored, so far unsuccessfully, to prove that President Biden did as they work to build an impeachment case against him.” (quoting NYT)

    The Constitution prohibits a president from accepting money, payments or gifts “of any kind whatever” from foreign governments and monarchs unless he obtains “the consent of the Congress” to do so. Trump never went to Congress to seek consent.

    Article I, Section 9: “no person holding any office of profit or trust under them, 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.” Those $7.8M are emoluments.

      1. Anybody that collects rent from property they own or profit from products they sell are actually collecting bribe payments.
        -Democrat logic

        1. I bribed a clerk at Walmart today! I was out of eggs and they were open. Guess I can’t be President now. Shucks!

    2. Yet he didn’t. His companies, which he did not control during that time, did.

      1. He received that $ via his companies. If you think he didn’t get that money, you’re deluded.

      2. Who controlled the Trump Organization while Trump was President?

        His sons, Don Jr and Eric.

        Were they profiting from their connection to their father?

        How is that any different from the Hunter allegations?

        1. Hunter was never President.
          Donald Trump was getting foreign money as President.
          The emoluments clause doesn’t say “oh, it’s OK if you get millions of dollars from foreign governments as long as your sons are temporarily the head of your company, even though the money is going to you.”

          Jimmy Carter put his farm into a blind trust. Trump’s businesses were not in a blind trust, and if you think he never discussed his businesses with his sons, you’re naive.

        2. There’s NO proof that JOE Biden ever received anything of value, despite massive efforts by Republicans to try to smear him.

          1. Gigi – There are bank records showing that he got money from his son and brother.

          2. Considering how valueless Joe Biden is, I’d say there may be some basis for what you say.

        3. So now you see a problem with Hunter vacuuming up masses of cash using his family name, multiple shell corporations, and dubious art sales?
          Nice!

          1. Hunter has never held elective office. He should be held accountable if he broke laws, but it’s not the same as DJT’s flouting the emoluments clause WHILE PRESIDENT.

    3. Yes, we all know that Billionaires view $7.8Million (0.0074%) as irresistible. Plus, we all know that the Democrats on the House Oversight Committee are totally unbiased with unimpeachable integrity. Right.

      1. Facts are facts. He got millions. And you bet he cares about it; he’s the “billionaire” who’s fundraising to get his supporters to pay his legal costs.

    4. It was a Hotel you Low info ignoramus. B8den Alone has gotten j6st under $100 million Fool . FJB

    5. You throw around a 7.8M figure without detailing payment of a single dollar. It is likely you are back to arguing that money spent on hotel rentals and the like are emoluments. No, they are not. An emolument is a form of compensation for employment. It does not cover an exchange of money for a piece of property, which is what rental of hotel space is.

      1. I gave everyone the title of the report, but you were too lazy to look it up. Here you go: https://oversightdemocrats.house.gov/sites/democrats.oversight.house.gov/files/2024-01-04.COA%20DEMS%20-%20Mazars%20Report.pdf

        And no, an emolument is NOT just “a form of compensation for employment.”

        Black’s Law Dictionary:
        “The profit arising from office or employment; that which is received as a compensation for services, or which is annexed to the possession of office as salary, fees, and perquisites; advantage; gain, public or private. Webster. Any perquisite, advantage, profit, or gain arising from the possession of an office. Apple v. Crawford County. 105 Pa. 303. 51 Am. Rep. 205; Hoyt v. U. S., 10 How. 135, 13 In Ed. 348; Vansant v. State, 96 Md. 110, 53 Ati. 711.”

  7. The SCOTUS may also find that:

    A State can not supersede a Federal Election or the Candidates thereof. Should Colorado, Maine et.al. wish to be disqualified and removed from the Electoral College because of their Ban on Federal Candidates, then that is allowable and enforceable by the SCOTUS.
    If So … whereas it stands today, there will be 48 States that will be able to send Electoral College Electors, should the SCOTUS hold this position.

    See Preemption; constitutional clauses. Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.
    [Link] law.cornell.edu/wex/supremacy_clause

    The Preemption Doctrine
    The Supreme Court described the preemption doctrine in Altria Group v. Good, 555 U.S. 70 (2008): “[S]tate laws that conflict with federal law are without effect.”
    [Link] bonalaw.com/insights/legal-resources/when-does-federal-law-preempt-state-law

    Supremacy Clause
    [Link] en.wikipedia.org/wiki/Supremacy_Clause

    Electorial Collage Electors
    [Link] archives.gov/electoral-college/electors

    1. e.g.: The State’s Presidential Electors are illegitimate due to the Ban of Federal Candidates from the Ballot. Therefore the State(s) is disqualified from the Electoral College tabulation on January 6th 20XX at the joint session of Congress for a final tally.

      1. States cannot be allowed to Hijack a Federal Election. [Plain in the face]
        What the Hell were they thinking? (ret), Is there no intelligence left in Government?
        Man are We in Troubled-Waters.

  8. We are told that disqualification via “insurrection” is the same as disqualification via age and citizenship.

    But here the crucial distinction that the Left does not want you to see:

    With age and citizenship, there is a publicly available, legal document establishing those facts.

    With the *crime* of insurrection, there is no such legal document — not until after an individual has been charged, tried, and convicted of insurrection. Once done, and legally recorded, then — and only then — are the cases analogous.

    1. Sam: You say that “with the *crime* of insurrection, there is no legal document–not until after an individual has been charged, tried, and convicted of insurrection”. What about the CO district court and the state’s SC that ruled DJT engaged in “insurrection”? Those are both “legal documents”. And what happens if the SCOTUS were to overturn the CO SC decision? Does that mean its decision is not a “legal document” because DJT has not yet be tried and convicted?

      You should read Section 3 of the 14th Amendment carefully. Does it say anywhere that an individual must first be tried and convicted before the Section applies? Conservative legal scholars, much smarter than both of us, have said Section 3 is self-executing. It does not require either an act of Congress or a court to rule. Section 3 is also a “legal document”. Remember, Section 3 is not a form of legal punishment. It’s simply a disqualification from holding office–similar to the age and citizenship requirements of the Constitution–another “legal document”.

      1. Dennis – As a matter of general principle of Anglo-American law, a person cannot be deprived of a valuable right without a hearing of some kind. That goes without saying. But if some kind of “saying” were necessary, it can be found in section 5, which states that Congress has the power to enforce the provisions of the Amendment. So, the drafters envisioned that there would be an enforcement or adminstrative mechanism in a form designated by Congress, and Congress alone.
        You conclude by saying: “Remember, Section 3 is not a form of legal punishment. It’s simply a disqualification from holding office–similar to the age and citizenship requirements of the Constitution[.]” You cannot be serious. Deprivation of the right to appeal to your fellow countrymen for election to office is an obvious deprivation of the highest order. Further, it is a deprivation of every American who is deprived of the right to consider supporting the disqualified candidate. It is a crime against the State, not just a political crime against the potential candidate. You can’t compare that deprivation to the age and citizenship requirements: it is obvious that children cannot be allowed to run the country; it is obvious that the right to office should require membership in the society that is going to be served. When a person is barred from the ballot on these entry level, immutable, criteria, no one is singled out due to their supposed “bad” behavior.

        1. edwardmahl: I am having a hard time following your reasoning. You say the disqualification of DJT under Section 3 is “a deprivation of the right to consider supporting the disqualified candidate”. If SCOTUS rules against DJT that means they will be depriving voters the right to vote for a “disqualified” candidate? Would you support such a decision? The Constitution and the Amendments were written precisely to deprive voters the right to vote for candidates that don’t meet the qualification requirements. That’s not a “crime against the State”. No, you are the one who is not serious!

        2. “As a matter of general principle of Anglo-American law, a person cannot be deprived of a valuable right without a hearing of some kind. That goes without saying.”

          This is not true. Not all deprivations of “valuable rights” are subject to due process requirements.

          You should read the seminal case of Bd. of Regents v. Roth (1972). A non-tenured professor had no right to due process under the 14th Amendment because the right to re-employment is not a liberty or property interest.

          Trump is seeking re-employment by running for the presidency. Removing him from the ballot does not deprive him of a life, liberty or property interest.

          For more evidence, check out this article: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1188&context=uclf.
          Many courts have concluded that elected officials do not hold a property interest in their positions; rather “an elected office is a public trust, not the private domain of the officeholder.” (Sweeney v. Tucker). “The public interest of the office far outweighs any private interest of the officeholder.”

          More to the point, if you are unfamiliar with Roth, then you may want to review its progeny. Procedural due process is a big topic in constitutional law, and there is no way that one could lead to a broad, sweeping conclusion like “any deprivation of rights ==> hearing” after reading.

      2. What about the CO district court and the state’s SC that ruled DJT engaged in “insurrection”?

        They had no authority to do so. Your point is nonsense. You best stick to your little private blog. When you engage you look like an imbecile.

        18 USC 2383 made insurrection a crime. Only a jury of peers has the authority to make that “ruling”.

        Next

        Dennis

        How many Confederate soldiers were “poor sharecroppers”?

      3. “What about the . . .”

        Someone doesn’t understand the meaning of the word “crime.” Or wishes to evade that word as a means to satisfying a desire.

      4. You should read Section 3 of the 14th Amendment carefully. Does it say anywhere that an individual must first be tried and convicted before the Section applies? </i

        I did read sec 3 Can you show me where is bars anyone from running for office?

      5. Dennis McIntyre/Baghdad Bob… Did The Big Guy, Bribery Biden who signs the front of your paycheque, anoint you with the designation Official Internet Lawyer prior to dispatching you with orders to sow Soviet Democrat Marxist chaos in the comments section?

    2. There were multiple court cases claiming that Obama’s birth certificate was fake. And 14 s3 doesn’t refer to insurrection as a crime, only as an act.

  9. Who here would argue that 18 USC 2383 was NOT an act of Congress to enforce 14a3, as permitted by 14a5.

    Assuming no one has the mendacity to do so, why would they have included the penalty of not being allowed to hold office? It was already in 14a3.

    18 USC 2383 codified 14a3 as allowed by 14a5. End of story.

    1. Monkeys throwing feces has better discussions of the legal issues then this blog.

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