by Chris Bray
The dissent of Justice Carlos Samour begins on pg. 146 of the PDF file. Read it, especially the second and final paragraphs of the excerpt below. This argument strikes me as not just correct, but as the beating heart of actual liberal values as they were understood until roughly the morning of November 9, 2016. I’ve broken this into shorter paragraphs for readability, and removed citations and a footnote, but you can read it as-is by clicking the link:
The decision to bar former President Donald J. Trump (“President Trump”)—by all accounts the current leading Republican presidential candidate (and reportedly the current leading overall presidential candidate)—from Colorado’s presidential primary ballot flies in the face of the due process doctrine. By concluding that Section Three of the Fourteenth Amendment is self-executing, the majority approves the enforcement of that federal constitutional provision by our state courts through the truncated procedural mechanism that resides in our state Election Code.
Thus, based on its interpretation of Section Three, our court sanctions these makeshift proceedings employed by the district court below—which lacked basic discovery, the ability to subpoena documents and compel witnesses, workable timeframes to adequately investigate and develop defenses, and the opportunity for a fair trial—to adjudicate a federal constitutional claim (a complicated one at that) masquerading as a run-of-the-mill state Election Code claim. And because most other states don’t have the Election Code provisions we do, they won’t be able to enforce Section Three. That, in turn, will inevitably lead to the disqualification of President Trump from the presidential primary ballot in less than all fifty states, thereby risking chaos in our country. This can’t possibly be the outcome the framers intended.
I agree that Section Three bars from public office anyone who, having previously taken an oath as an officer of the United States to support the federal Constitution, engages in insurrection. But Section Three doesn’t spell out the procedures that must be followed to determine whether someone has engaged in insurrection after taking the prerequisite oath. That is, it sheds no light on whether a jury must be empaneled or a bench trial will suffice, the proper burdens of proof and standards of review, the application of discovery and evidentiary rules, or even whether civil or criminal proceedings are contemplated.
This dearth of procedural guidance is not surprising: Section Five of the Fourteenth Amendment specifically gives Congress absolute power to enact legislation to enforce Section Three. My colleagues in the majority concede that there is currently no legislation enacted by Congress to enforce Section Three. This is of no moment to them, however, because they conclude that Section Three is self-executing, and that the states are free to apply their own procedures (including compressed ones in an election code) to enforce it. That is hard for me to swallow.
Significantly, there is a federal statute that specifically criminalizes insurrection and requires that anyone convicted of engaging in such conduct be fined or imprisoned and be disqualified from holding public office. See 18 U.S.C. § 2383. If any federal legislation arguably enables the enforcement of Section Three, it’s section 2383. True, President Trump has not been charged under that statute, so it is not before us. But the point is that this is the only federal legislation in existence at this time to potentially enforce Section Three. Had President Trump been charged under section 2383, he would have received the full panoply of constitutional rights that all defendants are afforded in criminal cases. More to the point for our purposes, had he been so charged, I wouldn’t be writing separately to call attention to the substandard due process of law he received in these abbreviated Election Code proceedings.
The absence of discovery, the absence of a fair trial, a rushed process, a process that disregards evidence and the actual law against insurrection, “substandard due process of law.” To protect democracy, of course.
Watch how many legal and societal norms are destroyed in the effort to stop Trump. These maneuvers will take us to dark places, quickly.