Elections experts, politicians say Colorado's decision to ban Trump from the ballot is unprecedented

Dec. 20—Some local politicians and political experts say the Colorado Supreme Court made a historically unprecedented decision Tuesday in its ruling to ban former president Donald Trump from the state's presidential primary ballot.

The United States has not been this polarized since the Civil War, former Republican Washington Secretary of State Kim Wyman said Tuesday evening. When she heard the news of Colorado's decision, Wyman said she was "speechless."

"This is not what I expected them to rule," Wyman said. "From my experience working in elections in the past 30 years, this is the first time a presidential candidate who is leading in the polls has been barred from the ballot in an entire state."

The contentious 4-3 decision by the Colorado's highest court marked the first time in United States history that Section 3 of the 14th Amendment has been used to disqualify a presidential candidate. Known as the disqualification clause, the law states:

"No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

In a 25-page ruling, Colorado Supreme Court justices wrote that Trump's speech that incited the crowd that breached the U.S. Capitol on Jan. 6, 2021, was not protected by the First Amendment of the Constitution.

The Colorado court's opinion states that, if the U.S. Supreme Court does not rule on the case by Jan. 4 (the day Colorado finalizes its March presidential primary election ballot) then Trump's name will still be put on the ballot. Experts say it is unlikely the nation's highest court will make a ruling that quickly, but it is likely the U.S. Supreme Court will offer the case what is called expedited review.

Each state has its unique way to choose presidential candidates. Some states have caucuses, while other states have primaries. Three states previously ruled against litigation to take Trump off their respective ballots. The issue is pending in many other states.

"This has become a political battle in the courts," Wyman said. "A more political battle than we've seen in previous election cycles. ... But the last four years have been unprecedented."

Deep divisions along party lines today pose the biggest threat to democracy the United States has seen in centuries, said Cornell Clayton, director of the Foley Institute for Public Policy and Public Service at Washington State University.

Clayton said in an interview that he is almost certain the U.S. Supreme Court will overturn Colorado's decision to ban Trump from the ballot. A central question in the case is whether the original framers of the Constitution intended the president to be considered an officer of the United States.

"There's overwhelming evidence to show that the original framers considered the president an officer," Clayton said. "It's going to be very hard to write an originalist opinion finding the 14th Amendment does not consider the president to be an officer of the United States."

Clayton added that resounding scholarly legal opinion considers the president to be an officer of the United States, and an overturn of Colorado's decision would mean the conservative-led Supreme Court would be going against its standard belief that the Constitution should be enforced the way it's written.

"I think it would behoove everybody to read this opinion — whether you support Trump or don't support Trump — in terms of thinking about who we're voting for," Clayton said. "This is an extremely educational moment for the country. It should lead Americans to understand that the only thing that unites a country so deeply polarized is the Constitution, or better put, the rules of the game."

Whether Tuesday's news would benefit the country's democracy posed an entirely separate question for experts and politicians.

"From a political perspective, this is going to feed into the paranoia among Trump supporters that the establishment will do anything to stop him," Clayton said. "So that's unfortunate."

Rob Linebarger, marketing and committee chair for the Spokane County Republican Central Committee, said he anticipates a bigger fight over Tuesday's ruling lies ahead. Linebarger told The Spokesman-Review he does not personally support Colorado's decision but cannot speak on behalf of the organization he works for.

"I think people see this is clearly political, and not justice," Linebarger said. "That's what most people feel. The Supreme Court of the United States is going to have to decide what the definition of an insurrection is."

A spokesperson for the Washington Office of the Secretary of State did not immediately respond to a request for comment on this story.

Ellen Dennis' work is funded in part by members of the Spokane community via the Community Journalism and Civic Engagement Fund. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper's managing editor.