Tag Archives: 14th Amendment

Colorado Ruling Reverberations: Why Removing Trump From the Ballot Does and Doesn’t Matter


Happy Holidays! The Ellis Insight will be taking a break over the Christmas holiday. We’ll return with new Insights on Jan. 2, 2024.

By Jim Ellis — Friday, Dec. 22, 2023

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Former President Donald Trump / Photo by Gage Skidmore

Colorado Republicans Pivot: Caucus Format Considered — A decision by The Colorado State Supreme Court Wednesday barred former President Donald Trump from the primary 2024 ballot because the justices maintained he violated the 14th Amendment by engaging in insurrection; this ruling predictably has ignited fierce responses.

The Trump campaign says they are immediately appealing the ruling to the US Supreme Court. Candidate Vivek Ramaswamy says he will withdraw from the Colorado ballot in protest and urges the other Republican presidential candidates to do the same. The Colorado Republican Party leadership is saying they may eschew the presidential primary and move to an internal party-run caucus format.

Since the political parties control their own nomination processes, the Colorado Republicans would have the authority to change from the primary format to a caucus. The party would then also slate its own candidates to compete for the presidential nomination. In the absence of a US Supreme Court ruling overturning the Colorado decision, changing to a caucus would likely be the party’s best option for giving Trump an opportunity to compete for Centennial State delegate votes.

Other state Supreme Courts, most notably Arizona and Minnesota, also have ruled on Trump’s ballot status and they arrived at the opposite conclusion to the Colorado high court, thus allowing him to compete in their state primaries. Even if the Colorado ruling stands and Trump is not on the state’s primary or general election ballot, it is unlikely to affect the presidential race outcome there. President Joe Biden is a lock to carry Colorado with or without Trump’s name on the ballot, so the national electoral vote count won’t change regardless of how the present controversy is ultimately resolved.

We could again see this issue arise in the general election. The states have the power to accept or reject the political party nominees for ballot placement, so it is conceivable the state Supreme Court could deny Trump ballot access in the general election along the same lines of reasoning present in their current decision.

Should the 14th Amendment controversy carry over to the general election, that would not do particular harm to the down-ballot Republicans, or even Trump for that matter. The former president is not going to win Colorado in the November election, so not appearing on the ballot here would have little effect on the national electoral vote count.

For the down-ballot Republicans not having to run with an unpopular Trump in their state, and with the former president’s voters likely incensed that he was barred from participating, the turnout pattern may actually improve for the Colorado Republican congressional, state Senate, and state House candidates if the former president were to be denied the ability to compete.

If other states were to follow Colorado’s lead, again absent a US Supreme Court ruling, it would likely only be in strong blue states, or those where Trump is clearly not going to win. Likewise, down ballot Republicans in those states may actually fare better, particularly in a place like California, then they would with Trump at the top of their ticket.

It is probable that the general election scenario described above, and very possibly even the primary situation, will not denigrate to the degree of a former president being denied ballot access because the US Supreme Court will likely face enough pressure to hear the Trump appeal and issue a ruling.

Since the former president was not charged with insurrection in any of his indictments and was even acquitted of such when it was part of the second impeachment proceeding, legal analysts believe that there is a better than even chance that the high court will rule in his favor and order the Trump name to appear on ballots across the nation.

The 14th Amendment Controversy

Former President Donald Trump / Photo by Gage Skidmore

By Jim Ellis — Thursday, Sept. 7, 2023

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Trump: Insurrection or Rebellion? — There is a great deal of discussion mounting about whether a key provision of the 14th Amendment to the US Constitution will disqualify former President Donald Trump from the 2024 presidential election ballot.

Recently, two US senators, Tim Kaine (D-VA) and Mike Lee (R-UT), assumed opposite debate positions. The phrase “have engaged in insurrection or rebellion” is at the crux of the argument. Sen. Kaine believes Trump engaged in insurrection with regard to his actions surrounding the January 6th Capitol incursion and should be disqualified from running for office. Many legal scholars agree.

Conversely, Sen. Lee objects, citing that the US Senate found then-President Trump not guilty of insurrection in the second impeachment vote. Therefore, he says, the “rebellion or insurrection” phrase does not apply. Many legal scholars agree.

Sen. Kaine, during a CNN interview, argued that “the language (of the amendment) is specific: If you give aid and comfort to those who engage in an insurrection against the Constitution of the United States — it doesn’t say against the United States, it says against the Constitution. In my view, the attack on the Capitol that day was designed for a particular purpose … and that was to disrupt the peaceful transfer of power as is laid out in the Constitution.”

In an interview with Utah’s Deseret News, Sen. Lee indicated he agrees with the arguments put forth from University of California at Berkeley professor John Yoo and others who published a paper pertaining to this subject.

Professor Yoo and the others penned in part, “if it were clear that Trump engaged in insurrection, the Justice Department should have acted on the January 6 Committee’s referral for prosecution on that charge. Special Counsel Jack Smith should have indicted him for insurrection or seditious conspiracy, which remain federal crimes. If it were obvious that Trump had committed insurrection, Congress should have convicted him in the two weeks between January 6 and Inauguration Day. Instead, the House impeached Trump for indictment to insurrection but the Senate acquitted him.”

Obviously, there are strong opinions on both sides of this argument and, as Sen. Kaine said, the courts, and most likely the US Supreme Court, will ultimately have to make a ruling.

The larger question, however, that no one is yet addressing, is when all of this will happen. If, for example, Trump is convicted in the Washington, DC trial regarding his January 6th actions, the 14th Amendment move to disqualify him could be triggered. Should this scenario unfold, perhaps the most important point would be whether the timing is before or after the Republican National Convention now scheduled for July 15-18, 2024.

If Trump’s name is stricken from the ballot, and that will likely become a state by state issue, then the Republicans will have to nominate a new candidate, assuming that Trump has accumulated enough delegates to clinch the nomination. Currently, the latter observation appears highly likely.

If the disqualification move comes before the RNC meets, the delegates could then nominate a new candidate in an open convention. After Trump becomes the official party nominee, then a whole new set of circumstances will occur, most of which will be subject to conjecture.

Will the vice presidential nominee automatically assume the top ballot positions? Would the RNC instead be called into a special convention to nominate another candidate? Would every state recognize the RNC action, regardless of the course the national political party chooses?

Should the 14th Amendment scenario not be solved before the convention convenes, it is probable the delegates would pass binding resolutions to cover a succession protocol in case what currently exists in the party bylaws is not wholly clear or does not fully apply to the current situation. In any event, political and legal chaos would undoubtedly ensue.

Consider the situation already coming to the forefront in Arizona. Democratic Secretary of State Adrian Fontes says his state’s Supreme Court has already answered the 14th Amendment issue. Fontes says, though he disagrees with the court’s ruling, that the Arizona Supreme Court has dictated Congress would have to specifically designate that Trump, or any other candidate, is to be disqualified from the ballot as it relates to the 14th Amendment insurrection or rebellion language. Otherwise, the candidate in question would be placed on the Arizona ballot.

It is very likely we will see other states invoking some exception or quirk in their own election law that would either place Trump on their ballot or disqualify him. Therefore, the 2024 election participants would then be forced to traverse another set of controversial circumstances that will clearly affect the outcome of the still unfolding campaign.