The editorial board of The Washington Post on Thursday urged the U.S. Supreme Court to overturn a recent decision by the Colorado Supreme Court to ban former President Donald Trump from its ballot.
The Colorado high court ruled on Tuesday that Trump is liable for an insurrection committed on January 6, 2021, and so is ineligible for holding public office again under Section 3 of the 14th Amendment. The court ruled in a 4-3 decision to bar Trump from its ballot, though it stayed its decision until January 4 or later in case of appeal.
The Trump campaign has promised to appeal the decision. In the meantime, the Colorado court’s decision ignited a debate over the merits of the case and the prudence of unelected judges determining the eligibility of a presidential candidate on standards significantly less defined than age or birth requirements.
The Post’s editorial board says the legal issues involved in the Colorado Supreme Court’s ruling are “murky,” and in writing its opinion, the judges “had to answer ‘yes’ to a vexing series of questions.” For example, the court found that Section 3 applied to the presidency despite doubts raised in a lower court ruling.
The board also points to whether Section 3 needs an act of Congress to take effect, especially given that “Chief Justice of the United States Salmon P. Chase ruled that such a move was necessary just a year after the 14th Amendment’s 1868 ratification.”
The biggest assumption that the Colorado Supreme Court’s decision rests on, however, is “whether Mr. Trump really did engage in insurrection,” the editorial board says.
“Not only has Mr. Trump not been convicted of insurrection either by a jury of his peers or from the bench by a judge; he hasn’t even been charged with it,” the board writes. “Tellingly, Justice Department special counsel Jack Smith has brought an aggressive case against the former president for conspiracy to defraud the United States, obstruction of an official proceeding and more — but not for violating the federal law against insurrection.”
“[A]cross multiple aspects of the case and on the insurrection question especially, the law is unclear. In the absence of clarity, a body of unelected officials should be reluctant to prevent the country’s citizens from choosing an elected official to lead them. The Supreme Court, hopefully, understands that,” the board says.