Strict reading of the law supports Colorado ruling — but SCOTUS won't: columnists
University of Baltimore School of Law professor Kimberly Wehle wrote Thursday that a strict constitutionalist that follows the letter of the law would support the ruling from the state of Colorado this week to ban Donald Trump from the ballot.
Writing for The Atlantic, Wehle cited the "striking ... conservative reasoning" from Colorado's Supreme Court justices in their conclusion.
"The four justices who voted in the majority adhered to three stalwart principles of judicial conservatism: textualism (by which judges endeavor to strictly apply the plain text of the Constitution), originalism (by which they refer to historical sources for a contemporaneous understanding of that text), and federalism (by which judges take pains to respect the dual sovereignty of the states alongside the federal government as well as the state courts’ concomitant prerogative to construe their own laws)," she wrote.
The most interesting, she said, is that the Colorado Supreme Court didn't merely cite the 14th Amendment Section 3, which outlines the rules for barring insurrectionists from holding public office. At issue was also the Colorado Uniform Election Code of 1992, "which contains that state’s criteria for getting on its presidential ballot. It determined that disqualification under Section 3 of the Fourteenth Amendment is also disqualifying under Colorado law."
It helps boost the state court's conclusion, Wehle explained, quoting the ruling: “It would be a wrongful act under the Election Code for the Secretary [of State] to list him as a candidate on the presidential primary ballot.”
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It will all likely be ignored, however, she said, because, after all, they've ignored their own laws before in Bush v. Gore. The court ruled in 2000 that the manual recount under Florida law violated the Constitution's equal-protection clause, and then handed George W. Bush the win with 537 votes.
At the time, Justice John Paul Stevens wrote, "When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers."
Supreme Court Justice Neil Gorsuch's was also one of the rulings that Colorado cited in their decision. While he was sitting on the federal bench in Colorado, Gorsuch wrote: "A state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office."
Bloomberg Law Noah Feldman doesn't expect the national Supreme Court to uphold the Colorado decision, regardless of what the text from both the state and federal Constitution says.
"The high court has several means at its disposal to overturn the Colorado ruling, none of which are ideal from the standpoint of the conservative majority. But all are at least conceivable," he wrote. "To see the justices’ options, here’s a short tour through the main points of the Colorado decision."
First, he said, they could ignore the Gorsuch opinion entirely, saying a state doesn't have any authority to decide their own ballots, despite the inconsistency.
Second, the one case that has been used to address Section 3 does not go into effect until Congress passes a law providing for its execution, which it hasn't done. Written in 1869 it might not work as it isn't a technically binding precedent.
The third option involves the meaning of the words "an officer of the United States." While Colorado said that it applies to any and everyone in elected office not directly mentioned, the High Court could ignore it entirely and say the president isn't an "officer." Still, the presidency is an office that was created under the Constitution and therefore "of the U.S.," said Feldman.