The Colorado Supreme Court’s Removal of President Trump From the Ballot Is an Egregious Threat to the Rule of Law

On Tuesday, the Colorado State Supreme Court ruled that President Donald Trump was ineligible to appear on the state’s Republican presidential primary ballot due to his supposed violation of the “insurrection clause” of the 14th Amendment. This decision, which overturned a previous state appellate court decision that determined that President Trump could appear on the ballot, was offered by a panel of seven Democrat-appointed judges, who rendered a 4-3 split in their decision.

President Trump’s campaign immediately promised to appeal the decision to the Supreme Court, and for good reason: the Colorado State Supreme Court’s decision is not just profoundly undemocratic—it is also deeply flawed on a legal level.

First, the Colorado Supreme Court’s theory rests on the notion that the 14th Amendment’s insurrection clause is self-executing and does not require due process of law. Notably, President Trump has not faced a single charge of insurrection in any of his legal battles, including in the Washington, D.C., case brought by Jack Smith. And in his impeachment trial on the same issue, he was acquitted by the Senate under those very charges.

Therefore, depriving President Trump of his right to appear on the Colorado ballot would violate due process of law. Furthermore, from a democratic perspective, it doesn’t make sense for private parties (rather than government actors) to bring suit to keep someone off the ballot, as was the case here. Under this logic, any individual could accuse someone who participated in a BLM riot, for example, of engaging in insurrection and ask the courts to remove that person from the ballot. If the court happens to agree, then the issues our country could face are endless—and democracy would suffer as a result.

Even still, the fact remains that President Trump did not engage in an insurrection against the United States (no matter what you might hear from the frenzied media). The 14th Amendment originally applied to Confederate officers in the aftermath of the Civil War. This and other Reconstruction-era amendments were meant to disqualify Confederate officers from holding public office. In other words, legitimate officers of a confederacy engaged in actual sustained rebellion and insurrection against the United States. It is patently absurd to compare President Trump’s exercise of his free speech rights and desire to investigate legitimate instances of voter fraud with the creation of the Confederate States of America, secession, and the subsequent Civil War.

But a further problem arises with this theory, too. The text of the 14th Amendment explicitly refers to those who have previously taken an oath as “a member of Congress,” an “officer of the United States,” a “member of any state legislature,” or an “executive or judicial officer.” It’s important to note that nowhere on this list is “President of the United States.” Long-time court precedents have held that an “officer” of the United States refers to an official who is appointed—not elected. If “officer” was meant to include elected officials, Senators, Representatives, and the President, then it would have been superfluous for the drafters of the 14th Amendment to list out “members of Congress” immediately before adding in “officers.” As such, the 14th Amendment clause on disqualification from public office does not apply to presidents and cannot be used against President Trump to keep him off the ballot.

Luckily, it is highly likely that the Supreme Court will reverse this egregious decision. However, it is also terrifying to watch liberal operatives try every trick in the book to keep President Trump from getting a fair shake at the ballot box. This decision from the Colorado State Supreme Court is another dangerous and undemocratic assault on the foundational principles of our constitutional republic. Whether or not President Trump should return to office is a question for the American people to decide, not the courts. The lawfare from liberal activists reflects their growing anti-democratic sentiment and panic as President Trump continues to rise in the polls.

This isn’t the first time one party has attempted to keep another out of office by removing him from the ballot, either. In 1860, Abraham Lincoln won the election without appearing on a single ballot in the South (and he was left off the ballot in 10 of the 11 states that would eventually secede). Just like in those times, we are entering another dangerous era of American history.

At the end of the day, the political decisions on who should lead our country should be made by the people in a self-governing constitutional republic like the one our Founders created. When one political party is weaponizing the justice system, inventing novel and unprecedented theories of law, and removing candidates from the ballot, that amounts to nothing less than a full-throated attack on republican self-government itself. In a place like America, the land of the free and the home of the brave, this cannot be allowed to stand.