he Colorado Supreme Court has issued an unsigned opinion, making history in the most chilling way possible. A divided court barred Donald Trump from appearing on the 2024 presidential ballot.
For months, advocates have been filing without success in various states, looking for some court to sign off on a dangerous, novel theory under the Constitution’s 14th Amendment. They finally found four receptive jurists on one of the bluest state supreme courts in the land.
Even on a court composed entirely of justices appointed by Democratic governors, Colorado’s Supreme Court split 4-3 on the question. The majority admitted that this was a case “of first impression” and that there was “sparse” authority on the question. Yet, the lack of precedent or clarity did not deter these justices from making new law to block Trump from running. Indeed, the most controlling precedent appears to be what might be called the Wilde Doctrine.
In his novel, The Picture of Dorian Gray, Oscar Wilde wrote that “the only way to get rid of a temptation is to yield to it.” The four Colorado justices just rid themselves of the ultimate temptation and, in so doing, put this country on one of the most dangerous paths in its history.
The court majority used a long-dormant provision in Section 3 of the 14th Amendment — the “disqualification clause” — that was written after the Civil War to bar former Confederate members from serving in the U.S. Congress.
In December 1865 many in Washington were shocked to see Alexander Stephens, the Confederacy’s onetime vice president, waiting to take the same oath that he took before joining the Southern rebellion. Hundreds of thousands of Americans had just died after whole states seceded into their own separate nation with its own army, navy, foreign policy and currency. So Congress declared that it could bar those “who have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
January 6, 2021, was many things — and all of them bad. However, it was not an insurrection. I was critical of Trump’s speech to a mob of supporters that day, and I rejected his legal claims to stop the certification of the 2020 presidential election in Congress. However, it was a protest that became a riot, not a rebellion.
Indeed, despite the unrelenting efforts of many in the media and Congress, a post-January 6 Harvard study found that most of the rioters were motivated by support for Trump or concerns about the election’s fairness, not by a desire to rebel.
Even the Justice Department’s special counsel Jack Smith, who threw every possible charge at Trump in two indictments, did not believe he had sufficient basis to charge Trump with incitement or insurrection.
Much can be said about this decision, but restraint is not one of them. What is most striking about the Colorado Supreme Court’s ruling is how the majority removed all of the fail-safes to extend the meaning of Section 3 of the 14th Amendment to block Trump.
There were a number of barriers facing advocates who have tried to stretch this provision to cover the January 6 riot. The four justices had to adopt the most sweeping interpretation possible on every one of those questions in order to support their decision.
The only narrow part of the opinion came with the interpretation of the First Amendment, where the four justices dismissed the free-speech implications of disqualifying presidential candidates based on political position and rhetoric.
The result is an opinion that lacks any limiting principles. It places the nation on a slippery slope where red and blue states could now engage in tit-for-tat disqualifications. According to the Colorado Supreme Court, those decisions do not need to be based on the specific comments made by figures like Trump. Instead, it ruled, courts can now include any statements made before or after a speech to establish a “true threat.”
It was inevitable that the Trump-ballot challengers would find four jurists in one state willing to follow something like the Wilde Doctrine. However, it is also important to note that a series of Democratic jurists previously refused to do so in various cases. They did so not out of any affinity to Trump but out of their affinity to the Constitution.
The Colorado Supreme Court has handed down the most anti-democratic opinion in decades. What is particularly galling is that these four justices stripped away the right of millions of voters to choose their preferred candidate in the name of democracy. It is like burning down a house in the name of fire safety.
The only good news is that this flawed theory can now be appealed to the U.S. Supreme Court where it is likely to be put to rest conclusively.
For many voters, however, the opinion will only reinforce Trump’s claims that Democrats are engaging in “lawfare” to achieve in the courts what they cannot achieve in the polls. Because of that, the opinion could not come at a worse moment. Trump is surging in opinion polls, and many Democrats are now openly saying they fear President Biden is about to be beaten in 2024. Not only is Trump beating Biden in many polls but he has a sizable lead among young voters.
For those voters, the Colorado ruling looks like a case of Biden being on the ropes when the referee just called the bout in his favor. Even if, as expected, these justices are reversed by the U.S. Supreme Court, many Americans will not forget what they will consider to be an effort to take away their vote. While these four justices offered their “first impression” in this dangerous opinion, the lasting impression of many voters is not likely to be good for the court or for Democrats.
In reaching this decision, these four justices admitted that “we travel in uncharted territory.” Sometimes that cannot be avoided, but in this case the Colorado Supreme Court steered off the constitutional map.
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.
