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The parties vying to disqualify Donald J. Trump have won on all legal issues, but the case is almost before the Supreme Court, where they will have to do it again.
By Adam Liptak
Report from Washington
The Colorado electorate seeking to disqualify Donald J. Trump from the state’s No. 1 Republican vote for 2024 found himself Tuesday night on 8 separate legal issues. However, in order to ultimately save him from participating in the elections, they will almost certainly have to. back – in the U. S. Supreme Court.
In a 4-3 ruling that sparked a political and legal earthquake, the Colorado Supreme Court ruled Tuesday that Trump had participated in an insurrection and was barred from federal office under the 14th Amendment.
“This is a primary, ordinary resolution through a state Supreme Court,” Derek Muller, a law professor at the University of Notre Dame, wrote on the Election Law blog. “Never in history has a presidential candidate been barred from election under Article 3 of the Fourteenth Amendment. Oversight by the U. S. Supreme Court seems inevitable and puts paramount pressure on the Court. »
On Tuesday, a majority said all of the key legal issues were against Trump.
“The sum of those elements is this: President Trump is disqualified from office as president,” the majority said in an unsigned opinion, arguing that his efforts to overturn the effects of the 2020 election amounted to engaging in an insurrection and that Section 3 of the law is invalid. The 14th Amendment, ratified after the Civil War, barred insurgents from holding federal office, adding the presidency.
Most added: “We don’t come to those conclusions lightly. We are aware of the magnitude and weight of the problems that have recently faced us. We are also aware of our solemn duty to the law, without worries or favors, and without allowing ourselves to be influenced. through the public’s reaction to the decisions we are required by law to make.
But the court gave Trump a temporary escape route. He has put his ruling on hold until Jan. 4 and if he seeks reconsideration from the U. S. Supreme Court, as he announced, the state court has said his call will remain on the ballot.
It may also take some time for judges to act, and Colorado’s Republican primary, scheduled for March, may also pass unaffected. Judges will possibly want to address the many interrelated legal issues in the case, which are new, complex, and incredibly far-reaching. In fact, courts in other states have come to other conclusions on some issues.
The justices may also be reluctant to withdraw from the electorate the ruling on how to evaluate Trump after the 2020 election.
Section 3 of the 14th Amendment prohibits those who have taken an oath “to uphold the Constitution of the United States” from occupying a place of work if they “have afterwards participated in or opposed an insurrection, or have rendered aid or convenience to their enemies. “”. »
Congress can lift the ban, according to the provision, but only by a two-thirds vote of the chamber.
Although the provision intended to deal with the aftermath of the civil war was drafted in general terms and, according to top experts, is still in force. Congress granted broad amnesties in 1872 and 1898. But those laws were retroactive, researchers say. , and did not restrict the potential force of article 3.
A trial in Colorado ruled that Trump had participated in an insurrection, but accepted his argument that Article 3 did not apply to him, believing that Trump had not taken the correct kind of oath and that the provision did not apply to the office of President.
The Colorado Supreme Court upheld the first component of the trial judge’s ruling: that Trump engaged in an insurrection, and added a commitment to overturn the final results of the 2020 presidential election; Check out to replace the vote count; encouraging false lists of competing voters; pressuring the vice president to violate the Constitution; and calling for a march to the Capitol.
But the majority overturned the part of the trial judge’s ruling that the Section 3 provision did not save Mr. Trump from reelection.
This view has its critics. In an op-ed published in the Wall Street Journal in September, Michael B. Mukasey, who served as attorney general under President George W. Bush wrote that Article 3 is limited to persons who have taken an oath to the Constitution “as members of Congress, or as an officer of the United States, or as a member of any legislature of a state, or as an executive or judicial officer of a state. “
The only category arguably that applies to Trump is that of “U. S. official,” Mukasey wrote. But that phrase, he said, “refers only to appointed officials, elected officials. “
In a law review article first published in August, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Petersburg have written a law review. Mr. Thomas disagrees with Mr. Mukasey.
Their article concluded that “the ordinary sense of the text” of the Constitution, “the structure and logic of its provisions,” “the evident design to be comprehensive,” “the seeming absurdity of the prospect of exclusion of the offices of president and vice president from triggering the disqualification” and other factors “all convince us that the natural conclusion is the correct one: Section 3 includes in its coverage, or ‘triggering’ language, insurrectionists who once served as president and vice president.”
They added that “a reading that would make the document a ‘secret code’ loaded with hidden meanings discernible only through a determined Illuminati priesthood is unlikely. “
Other academics, such as Josh Blackman of South Texas Law School in Houston and Seth Barrett Tillman of Maynooth University in Ireland, argue that Article 3 does not protect Mr. Trump. It is, they write, “substantial evidence that the president is not an ‘official of the United States’ under Article 3. “
The Colorado Supreme Court ruled that the presidency was covered by this provision. “President Trump is asking us to hold that Article 3 disqualifies all hardcore insurgents who do not abide by the oath, and that it prohibits those who break it from holding virtually every office. “and every office, whether state or federal, is the highest in the country. Both of these effects are inconsistent with the plain language and history of Section 3. “
The state Supreme Court addressed several other factors. Congress doesn’t want to act to disqualify candidates, he said. Trump’s eligibility is not the kind of political factor that escapes the jurisdiction of the courts. The House report of January 6 was duly admitted into evidence. Trump’s speech that day was not through the First Amendment, according to the text.
The court added that under the Constitution, states can compare the qualifications of presidential candidates. “If we were to adopt President Trump’s view,” the majority wrote, “Colorado could simply exclude from the poll even candidates who obviously qualify. “age, residency and citizenship requirements” of the Constitution.
The case reminded some of the Bush v. Gore or the 2000 resolution that gave the presidency to Mr. Gore-Bush.
“Once again, the Supreme Court finds itself in the middle of an American presidential election,” said Richard L. Hasen, a law professor at the University of California, Los Angeles. “But in 2000, the general political instability in the United States makes the scenario much more precarious today. “
Adam Liptak covers the Supreme Court and writes Sidebar, a column about legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining the Times in 2002. Read more about Adam Liptak
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