The Colorado Supreme Court’s decision to disqualify Donald Trump from the state’s primary ballot next year has set off an uproar that the decision is undemocratic — just another example of Democrats weaponizing the justice system and a way of depriving voters of their right to decide who the next president will be.
The protests are based on a complete mischaracterization of the decision and the U.S. Constitution clause on which it’s based.
First, the Colorado justices did not disqualify Trump from the ballot or the presidency. The former president did that himself by triggering Section 3 of the 14th Amendment, the so-called Disqualification Clause. Trump swore on Jan. 20, 2017, to uphold the Constitution; he played a part in a rebellion against it on Jan. 6, 2021.
The Disqualification Clause is like a two-sentence booby-trap Congress planted in the Constitution 155 years ago against those who would try to overthrow it. It’s as important today as it was when ratified in 1868.
In effect, Section 3 establishes that allegiance to the Constitution is a qualification for the presidency, not unlike the requirements that candidates for the office be natural-born citizens, at least 35 years old, and residents for at least 14 years. Voters don’t object to those constraints on their choices, and they shouldn’t object to this one. So far as qualifications go, prohibiting a known insurrectionist from holding our constitutional democracy’s most powerful office should top the list.
Second, although Section 3 doesn’t specify the Office of the President, the president is “an officer of the United States” who takes an oath to support the Constitution. If Congress had intended to exclude the president from that category, it would have said so. In fact, Section 3 makes clear there is only one way to exclude an officer of the United States from disqualification: a two-thirds vote of each House of Congress.
Third, several critics of the Colorado decision say other states have rejected the efficacy of Section 3 in the presidential election. It’s true that courts in two states — Minnesota and Michigan — have tossed out similar lawsuits. But they did so on procedural issues like whether Congress rather than courts should determine Trump’s eligibility and whether the litigants were qualified to sue. The Colorado decision is the first issued on substantive grounds.
Fourth, nothing in the clause says a person must be convicted of insurrection to be disqualified from public office. Many legal scholars consider Section 3 to be “self-executing,” meaning it takes immediate effect when an officer of the United States takes part in or aids an insurrection.
Three courts — one in New Mexico and two in Colorado — have ruled the events of Jan. 6, 2021, constitute an insurrection. The two Colorado decisions concluded Trump took part in or aided it. Meticulous investigations by the House January 6 Committee and special counsel Jack Smith have produced a preponderance of evidence that the then-president tried to overturn a lawful election. Trump’s federal indictment accuses him of three criminal conspiracy charges to disrupt and defraud the constitutional process of certifying the results.
If Donald Trump wants to prove he’s innocent, he should let his case go to trial as soon as possible — before next year’s election.
Fifth, just as sinners can’t blame the Bible for their sins, Trump can’t legitimately blame the justice system or Democrats for his alleged crimes. He is finally being held accountable for acting like the nation’s laws and traditional ethics don’t apply to him.
If there is fault here, it’s that our legal system and the federal government’s checks and balances have been too lenient with Trump. By failing to enforce the boundaries of presidential power, Congress reinforced his idea that he is above the law or that it is powerless to keep him within its limits.
Finally, it’s important to understand that Trump’s insurrection began long before Jan. 6, 2021, and continues today. His attempt to undermine public confidence in the electoral system started in 2016 when he claimed without foundation that he, not Hillary Clinton, would have won the popular vote “if you deduct the millions of people who voted illegally.”
He alleged throughout the 2020 campaign that Democrats were trying to “rig” the election, were engaged in a “scam,” that “ballots are out of control,” and that 2020 would be “the most INACCURATE & FRAUDULENT election in history.” He repeatedly refused to say he would accept the election results. A Washington Post database shows that from the time polls closed on Nov. 3, 2020, to the time his term ended, Trump made over 800 inaccurate claims in public about the election’s results.
After he lost, Trump promoted the unfounded idea that Democrats stole the 2020 election, a message picked up by a web of pundits, elected officials, and media outlets that “stoked distrust in our electoral system, instigating an insurrection.”
Trump’s blatant contempt for the law continues today, not only with his insults to undermine confidence in judges, prosecutors, and citizens taking part in grand juries but also his failure to control his supporters, who attempt to terrorize public servants doing their jobs. During the Jan. 6 riots in the Capitol, Trump failed for hours to tell his supporters to stop the violence.
He’s silent again now as the Colorado justices and others are assaulted with threats. A top Justice Department official told ABC News the week before Christmas there’s “an unprecedented rise in threats to public officials across the board: law enforcement agents, prosecutors, judges and election officials.”
Trump’s eligibility to run for the presidency again will not be decided in the court of public opinion. Based on the misinformed reactions so far, it shouldn’t be. Instead, the Supreme Court will decide it, and the justices will show America whether their loyalty is to Trump or the United States Constitution.
William S. Becker is co-editor of and a contributor to “Democracy Unchained: How to Rebuild Government for the People,” and contributor to Democracy in a Hotter Time, named by the journal Nature as one of 2023’s five best science books. He is currently executive director of the Presidential Climate Action Project (PCAP), a nonpartisan climate policy think tank unaffiliated with the White House.