Opinion: Dissenting Colorado Supreme Court justices show us how democracy is dying in United States

A majority of justices on the Colorado Supreme Court recently determined that former President Donald Trump is constitutionally ineligible to hold office again. It was a ruling that resulted from a straightforward understanding of the law and facts.

But the opinion was necessary to correct an alarming error by a lower court judge, and it represented a split decision that was marred by dissents from three of the seven justices, including Chief Justice Brian Boatright. His opinion encapsulates a misunderstanding of — or refusal to accept — Section 3 of the 14th Amendment even among some of the nation’s highest ranking jurists, and it reflects the unfolding failure of U.S. institutions to sustain constitutional order in the face of an existential threat.

The 11 pages Boatright issued in response to Anderson v. Griswold are worth examining as part of the record of this precarious moment in the nation’s history, when ruling-class cowardice and complacency have allowed Trump and other adversaries of the United States to maneuver into attack position.

The top justice in Colorado is part of the problem.

In September, six Colorado voters filed a lawsuit in Denver District Court seeking to block Trump from the 2024 presidential ballot. They argued that the 14th Amendment disqualifies Trump as a candidate due to his actions around the Jan. 6 insurrection. Section 3 of the amendment, ratified after the Civil War to deal with former Confederate figures, says no person who took an oath to support the Constitution but then “engaged in insurrection” can hold office in the United States.

The District Court held a five-day evidentiary hearing that included testimony from experts in constitutional history and political extremism. Judge Sarah B. Wallace made several significant and well-justified findings, chief among them that Trump engaged in insurrection. But she also erred in ruling that Section 3 doesn’t apply to presidents.

A majority on the Supreme Court affirmed what Wallace got right and rejected what she got wrong. Though the case is ultimately expected to be decided by the U.S. Supreme Court, the Colorado court ordered the secretary of state to bar Trump from the presidential ballot.

Boatright, however, dissented. Essentially he said that the part of Colorado elections law under which the plaintiffs sued wasn’t up to carrying such a case.

“Simply put, section 1-1-113 was not enacted to decide whether a candidate engaged in insurrection,” Boatright wrote.

The expedited nature of the case before the District Court was not to Boatright’s liking, even though Wallace allowed for many hours of testimony and considered hundreds of pages of briefs. Boatright’s other main complaint was that barring Trump from the ballot under Section 3 is inappropriate “in the absence of an insurrection-related conviction.” 

One of the most common objections from Trump supporters to Section 3 challenges is that he was never convicted of insurrection, which can be a criminal offense under federal law. But this objection exhibits basic ignorance of how Section 3 is supposed to work — the provision defines a disqualification from office, not a sentence or punitive measure. You can’t be president if you’re not 35. Similarly, you can’t be president if you took an oath and engaged in insurrection. You could also be indicted for insurrection, but that’s an entirely different matter.

Constitutional scholars understand this. Judges are supposed to understand this. Boatright doesn’t understand it, or he chose not to understand it.

Boatright joined the court in 2011. Though appointed by a Democratic governor, he was a registered Republican until at least 2020. In his last state evaluation, when he was up for a retention vote in 2014, members of the state judicial performance panel found his writing skills lacking. His opinions, they said, “lacked the quality of composition expected of a Supreme Court Justice, and at times did not adequately set forth the analysis supporting them.”

Based on his analysis in the Trump case, Boatright, who is up for another retention vote next year, has made no improvement.

Justices Carlos Samour and Maria Berkenkotter also wrote dissents.

Samour complained that Section 3 is not necessarily “self-executing” — in other words, he thinks state authorities can’t independently wield it absent federal enforcement legislation. Many top Section 3 scholars, in addition to the Colorado Supreme Court majority, dismiss that argument. And Samour expressed reservations about a lack of a criminal insurrection conviction for Trump. Samour, like Boatright, was appointed by a Democratic governor but has been a registered Republican, and he clerked at the U.S. Court of Appeals for the 10th Circuit in Denver for a judge appointed by Republican President Richard Nixon.

Berkenkotter thought the court majority exceeded its authority in deciding the case. In summary, the dissenting judges deemed the Section 3 question a real tough one, and they thought the court was not equipped to decide it.

Among the deepest sources of disillusionment in the Trump era is the failure of laws and institutions to check what is so obviously a domestic enemy. The U.S. Senate, when it declined to convict Trump after his Jan. 6 insurrection impeachment, modeled a status of impunity that other authorities have emulated in countless ways, so that three years later we have a failed-state situation in which the person who led a violent attempted coup is now the leading candidate for president and promising to rule as a dictator.

The framers of Section 3, who had also seen insurrection up close, handed down to subsequent generations of Americans a way to defend against those who would attempt to upend constitutional order. Yes, a person with authority to adjudicate a Section 3 challenge must decide what it means, legally, to engage in insurrection. But it shouldn’t be that hard to conclude that Trump engaged in insurrection — we all watched it happen with our own eyes. The Constitution says he can’t hold office again, and the weight of scholarship says state officials do not have to wait around for congressional permission to ensure that he doesn’t.

This is no time for judges to indulge in misplaced punctiliousness, or to devise a plausible retreat and call it legal restraint. The future of democracy in the United States is at stake. The Constitution provides the tools leaders need to protect it, yet Section 3-rejecting judges in other states, and the dissenters on the Colorado Supreme Court, have instead chosen timidity and cavils. Their clever justifications and legal rationalizations read like a form of self-regard that’s appalling in the face of a MAGA takeover. Boatright’s useless counsel is akin to an usher insisting that patrons walk in orderly fashion to the exits as the theater burns.

The challenge to Trump’s candidacy is likely the most consequential case any of the Colorado justices will ever decide. Three of them registered a historic failure.

Editor’s note: This opinion piece first appeared on Colorado Newsline, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and Twitter.