Perspectives
December 20, 2023 | By Dan O’Donnell
Policy Issues
Accountable Government Ballot Integrity Constitution

Democracy Dies In The Colorado Supreme Court

Dan O’Donnell on why Colorado removing Trump from the ballot isn’t just anti-Democratic, it’s laughably constitutionally ignorant.

Democracy died a little bit Tuesday night, but not in darkness like the Washington Post believed it would; in the Colorado Supreme Court. In a 4-3 decision that already ranks as one of the worst in American history, justices voted to remove former President Donald Trump from Colorado’s presidential ballot next year.

The four-judge majority—Democrats all—relied on about as expansive a reading of the 14th Amendment’s Insurrection Clause to hold that Trump’s actions on January 6th, 2021, constituted an incitement to “insurrection or rebellion” against the United States and that he is thus barred from holding “any office, civil or military under the United States.”

The reasons that this is patently absurd are too numerous to list, but the primary one is that Trump has never been convicted or even charged with either insurrection or rebellion. In federal law, “Rebellion or Insurrection” is prohibited under 18 U.S. Code § 2383 and specifically designated as “engag[ing] in any rebellion or insurrection against the authority of the United States or the laws thereof, or giv[ing] aid or comfort thereto.”

The Insurrection Act of 1807 laid the legal framework for what constitutes a rebellion or insurrection, and Congress came to define it as opposition to “the authority of the laws of the U.S. and obstructing their execution” by “such combinations that are too powerful to be suppressed by the ordinary course of judicial proceedings.” January 6th was a riot to be sure, but it was relatively quickly broken up by the Capitol Police, not the United States Military.

Did Marines have to invade to get the guy to remove his feet from Nancy Pelosi’s desk? Did Navy Seals need to take out the QAnon Shaman? Did B2 bombers have to launch airstrikes against the little old ladies singing “God Bless America” on the National Mall?

The crimes of insurrection and rebellion have always required the literal taking up of arms against the United States, which is why the 14th Amendment’s Insurrection Clause was specifically aimed at preventing former Confederates from seeking office in the Reconstruction-era government.

Even though it rather obviously does not apply to Trump, the four liberal justices who removed him from Colorado’s ballot are ignoring the fact that no prosecutor, federal or state, has ever charged him with insurrection or rebellion. The former President currently faces 44 different federal charges in two separate prosecutions and not one of them, not a single charge, is a violation of 18 U.S.C. § 2383. He also faces 47 state charges in both Georgia and New York, and not a single one of them is under a state statute akin to federal law’s “Rebellion or Insurrection” statute.

Without a conviction or even a charge of insurrection, four Colorado Supreme Court justices instead relied on their own personal opinions on what constitutes a rebellion against the United States. This sort of judicial activism is made even more egregious by the fact that it will effectively disenfranchise well over a million Coloradans who were likely to vote for Trump next year.

The former President received more than 1.3 million votes in 2020, and while President Joe Biden won Colorado in a 55%-42% rout, it is theoretically possible (though unlikely) that Colorado could be a deciding state in 2024. If that were to be the case, then four judges—not millions of voters in Colorado and tens of millions across the country—would ultimately decide the next presidential election.

Does that sound like a democracy at all?

Taking away the voice of the people is about as serious as judicial malfeasance gets, but fortunately, it is easily remedied when it’s done by judges as fundamentally unserious as Colorado’s Supreme Court majority. The United States Supreme Court will have to intervene and overturn this abomination of a ruling.

To borrow a phrase that the four liberal Colorado justices will appreciate, Democracy depends on it.

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