Trump and the Colorado ballot: Due process on trial

If you are a regular reader of this column, you likely know a couple of things about me: firstly, I am conservative, Republican, and evangelical; secondly, I am not a Trump supporter. I was not part of the ‘Never Trump’ crowd, but today I am a ‘Never-again Trumper!’ Even so, I was outraged at the decision by the Colorado Supreme Court to keep former president Trump off the state’s primary ballot.

It started with a lawsuit by six Colorado voters who claimed that Trump was ineligible based on Section 3 of the 14th Amendment, which forbids those who have previously taken an oath to support the Constitution and “ … shall have engaged in insurrection or rebellion …” from holding office.

The Colorado District Court in Denver issued a nonsensical ruling in the initial lawsuit. They ruled that Trump had engaged in insurrection but that Section 3 of the 14th Amendment did not apply to the presidency. Even though the amendment explicitly applies to “ … any office, civil or military, under the United States …”

The plaintiffs appealed to the Colorado Supreme Court. The court upheld part of the lower court’s ruling and reversed another part. They upheld the finding that Trump had engaged in insurrection against the United States. They then reversed the lower court and declared that Section 3 of the 14th Amendment applies to the office of president. The court further instructed Colorado Secretary of State Jena Griswold not to place Trump on the 2024 presidential primary ballot in Colorado and not to count any write-in votes for the former president.

This is not the only attempt to remove Trump from a state ballot under Section 3 of the 14th Amendment. This case, and the others like it, will almost certainly be decided by the U.S. Supreme Court.

So why am I outraged by this decision even though I am not a Trump supporter? The decision hinges on whether Trump engaged in “insurrection or rebellion” against the United States. Many in the media have described the events of Jan. 6 as an insurrection. I strongly disagree! I was in the DC area on Jan. 6, 2021 (visiting relatives not attending the rally), and like many Americans, I saw the events of that day unfold on TV. What I saw was a rally that turned into a protest that turned into a riot. “Insurrection or rebellion” are crimes defined by law in 18 U.S. Code § 2383. In a criminal case, a charge like this would require a high standard of proof and formal charges, none of which have been leveled against Trump. Yet, in this civil context, the court deemed him guilty of a crime for which he has not been criminally charged.

The Colorado Supreme Court consists of seven justices, all appointed by Democrats. Even so, this was a 4-3 split decision. In dissent, Chief Justice Brian Boatwright noted that this action was inappropriate in “ … the absence of a criminal conviction for an insurrection-related offense.” In other words, Trump has not been convicted of the crime that is being used to disqualify him from the ballot! In fact, he has not even been charged.

Associate Justice Carlos Samour addressed the lack of due process in his dissent, writing, “what took place here doesn’t resemble anything I’ve seen in a courtroom. In my experience, in our adversarial system of justice, parties are always allowed to conduct discovery, subpoena documents and compel witnesses, and adequately prepare for trial …” Justice Samour is essentially saying that in the absence of conviction (or charge) under 18 U.S. Code § 2383 the court has found Trump guilty of the crime and is applying the consequence of disqualification. However, this is improper under the more lenient rules of civil court and a violation of Trump’s due process rights.

In this case, a civil court found Trump guilty of a crime with which he has never been charged and used that decision as the reason to take away the right of Colorado Republicans to vote for him in the primary.

I was going to close with some hyperbole and say that Trump supporters in Colorado ought to be ‘up in arms’ over this. But, given the trend, a civil court might decide that I am guilty of engaging in an insurrection and ruin my chances of being elected president!

David Chung is a Gazette editorial fellow. david.chung@thegazette.com