Why Our Clients Sued to Keep Trump Off the Colorado Ballot
Why Our Clients Sued to Keep Trump Off the Colorado Ballot
Applying the Constitution is neither anti-democratic nor partisan—it is what democracy requires.
FOLLOWING THE CIVIL WAR, Republicans in Congress were understandably wary of the actions that former Confederates might take to undermine the government of the country they had recently opposed. This is one reason why, in drafting what would become the Fourteenth Amendment, they included a section barring anyone from elected office who took an oath to the Constitution and later broke that oath by engaging in an insurrection against it.
It is because of this provision that Donald Trump has been barred from the Colorado ballot.
After hundreds of pages of legal briefing, testimony by multiple witnesses, introduction of evidence, a five-day trial before a judge, and an appeal to the Colorado Supreme Court, our team proved that Trump engaged in an insurrection. Under Colorado law, because he is not constitutionally qualified to hold the office of president, he is also not eligible to be on the ballot.
Now Trump has appealed to the U.S. Supreme Court.
This is the appropriate legal and constitutional approach for resolving our disputes. We subject the evidence to the crucible of the courts and rely on the judicial system to interpret the law. We allow for robust and informed debate from both sides and accept the outcome.
This process has upset some supporters of the former president. They claim that it is not democratic and undermines the will of the people. They believe that only the ballot box can be used to judge Trump. They are wrong. The courts are not disqualifying Trump—the Constitution is.
First and foremost, we cannot pick and choose which provisions of the Constitution to enforce. Down that path lies constitutional chaos: Once you start picking and choosing in that way, you put at risk our right to free speech, our protections against unconstitutional searches and seizures, the right to equal protection, and more. We cannot imagine many Trump supporters would be willing to ignore the rights enshrined in the Second Amendment—or, for that matter, be willing to believe that the Twenty-second Amendment limiting presidents to two terms would not apply to Barack Obama.
Furthermore, as Colorado resident and preeminent conservative legal mind Judge Michael Luttig has rightly argued, it was Trump’s anti-democratic conduct—specifically his attempts to undermine the peaceful transfer of power—that triggered a response necessitated by the Constitution. Trump used threats and violence in an attempt to disenfranchise more than 80 million Americans who chose another president. The Fourteenth Amendment automatically shielded our democracy by making Trump ineligible to hold office again the moment he engaged in an insurrection.
Trump does not need to face a criminal trial or be convicted. The Fourteenth Amendment is not a criminal statute and will not subject him to penal consequences—no fine, no prison. Instead, it is a civil matter determined by a different burden of proof, and it only denies him the privilege of seeking office. That is a significant difference. For example, O.J. Simpson was found not guilty of murder in the famous criminal case, but in subsequent civil court proceedings was still found liable for those deaths and ordered to pay tens of millions of dollars.
In this case, Trump had his day in court, though he refused to testify and fought our efforts to subpoena him. He forfeited his opportunity to personally plead his case. And in the end, he lost. He must now pay the consequences.
This is not a partisan issue. The plaintiffs we represent have spent decades fighting for Republican candidates and causes in our state. Some voted for Trump but could not ignore the threat to democracy they saw unravel before their very eyes three years ago. Today, they want votes cast in the Republican primary to count. A constitutionally unqualified candidate like Trump would disenfranchise voters who may mistakenly believe he is eligible and undermine our elections in the process. Only people who are permitted to take office under the Constitution should appear on the ballot.
Thus, the removal of Trump from the Colorado ballot is not undemocratic but is in the service of democracy and our constitutional system. The Supreme Court has a duty and obligation to uphold the Constitution and bar Trump from appearing on the Colorado ballot.
Martha Tierney and Mario Nicolais are two members of the attorney team representing six Republican and unaffiliated Coloradans who brought a challenge to keep Donald Trump off the ballot. Mario has represented primarily conservatives and Republicans over the past twenty years while Martha typically represents liberal organizations and Democrats.
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