Colorado Court Decision Defies Due Process, Party Process, and Electoral Process

On December 19^th, The Colorado Supreme Court decided to bar former President Donald Trump from the Republican Party Ballot. While the decision was a shock for most of the nation, the biggest concern is how it ignores several central constitutional processes. First, the State court cited section 3 of the 14^th Amendment, while ignoring key provisions of the 5^th Amendment, denying Donald Trump Due Process. Second, the State Supreme Court establishes a dangerous precedent of being able to decide who can be on a party’s primary ballot, interfering with how Parties manage their own candidate election processes. Finally, this ruling and the coverage surrounding it show a lack of understanding of how election day really focuses on the electors instead of individual candidates.

The Colorado Supreme Court’s decision is based on a debated interpretation of Section 3 of the 14^th Amendment. Here it defines positions where an individual can be barred from running for office for participating in insurrection. The Amendment mentions Senators, members of the House of the Representatives, Judicial officers, members of the armed forces and Presidential Electors. The Amendment does not mention Presidential candidates, and its most general statement notes, “any person…hold[ing] any office, civil or military, under the United States.” While the court assumes any office under the United States covers whoever sits in the Oval Office, it is important to recognize that the authors of the 14^th Amendment would have put the President as one of the offices in the Amendment’s text if they thought it applied. By having the Electors face the no insurrection requirement, the Amendment puts the trust in them to make the informed decision of eligibility for office within the other limitations provided in the Constitution.

Assuming for a moment that the Colorado Supreme Court’s interpretation of Section 3 of the 14^th Amendment were correct, then even still, their ruling violates Due Process as defined in the 5^th Amendment. The court justified their decision based on the part of the 14^th Amendment, which disqualifies individuals from elected office who, “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” However, the 5^th Amendment states “No person shall… be deprived of life, liberty, or property, without Due Process of law.” Since Donald Trump has yet to be convicted of insurrection of any sort, and Due Process for cases against him are still ongoing, the Colorado Supreme Court has no standing to bar him from the ballot. To remove him as a voting option now flies in the face of our founding principles and the rights and liberties that all people should have as endowed by our creator.

The decision also displays heavy interference in political party processes. The ruling itself states, “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 Colorado Supreme Court, through this decision, establishes a precedent allowing the courts to choose who can or who cannot run for a party’s nomination, instead of the parties themselves. 

By doing this, the court undermines the party process, making the Republican and Democratic parties mere vessels for candidates approved by the government. This would be an entirely different scenario if there was a dispute about Party rules and procedure for qualifying candidates for the ballot, and the court simply had to adjudicate a dispute over party rules. But, by weighing in to such a severe degree, ignoring Due Process, and deciding the outcome while court cases are still in process, the court went from arbitrating a dispute over party rules to interfering and dictating how Parties run their primaries.

Finally, the decision reflects a lack of understanding by the courts and the general public about how the Electoral Process works. In the court’s opinion, they state, “But voters no longer choose between slates of electors on Election Day…Instead, they vote for presidential candidates who serve as proxies for their pledged electors…Accordingly, states exercise their plenary appointment power not only to regulate the electors themselves, but also to regulate candidate access to presidential ballots.” While it is true that states can impose fines and regulations on electors to conform with the popular vote within their state, there has not been any constitutional reform that reduces the power of the electors, nor separates the results of the election from deciding the slates of electors that each party has chosen. To assume the vote for president is directly for the individual candidate and not for the electors may follow public perceptions of the electoral college, but it is constitutionally and legally untrue. To rule a candidate ineligible from the ballot, shall he be the party’s nominee, is to also rule that party’s slate of electors equally ineligible, barring an entire party, not just a candidate, should Trump be the nominee.

The downstream effects of this decision are tremendous. Should Trump win renomination, would the Colorado Supreme Court deny the entire Republican Party representation on the ballot? This opinion suggests they would, since they already have made up their minds on Section 3 of the 14^th Amendment. The Colorado State Supreme Court is willing to interfere in the Republican Primary and deny Donald Trump the Due Process any and all people should be entitled to. Furthermore, this decision alienates the Electoral College, through their claims that the Presidential election is not about electors, but rather individual candidates.