And that should theoretically appeal to the Supreme Court’s conservative justices.
However troubling its political implications might be, the Colorado Supreme Court’s ruling on Tuesday that Donald Trump is disqualified from the state’s primary ballot for having “engaged in insurrection” demonstrates that the judicial system is still functioning in the United States. The reason is straightforward: The court applied the plain language of the Constitution, doing its job with clarity and fidelity to the rule of law.
But perhaps what is most striking about Colorado’s decision was the conservative reasoning the justices employed to reach their conclusion. The four justices who voted in the majority adhered to three stalwart principles of judicial conservatism: textualism (by which judges endeavor to strictly apply the plain text of the Constitution), originalism (by which they refer to historical sources for a contemporaneous understanding of that text), and federalism (by which judges take pains to respect the dual sovereignty of the states alongside the federal government as well as the state courts’ concomitant prerogative to construe their own laws).
This third element is perhaps the most interesting. The Colorado Supreme Court was tasked with interpreting Colorado’s Uniform Election Code of 1992, which contains that state’s criteria for getting on its presidential ballot. It determined that disqualification under Section 3 of the Fourteenth Amendment is also disqualifying under Colorado law. And it upheld the lower court’s conclusion, after a multiday evidentiary hearing, that Donald Trump in fact engaged in insurrection. Because he is thus disqualified as a matter of Colorado law, the Colorado Supreme Court determined, “it would be a wrongful act under the Election Code for the Secretary [of State] to list him as a candidate on the presidential primary ballot.”
The U.S. Supreme Court has ignored this sort of reasoning before—and to ill effect. In Bush v. Gore, it ruled in 2000 that manual recounts under Florida’s law regarding contested election results would violate the Constitution’s equal-protection clause, and thus effectively handed the election to George W. Bush by a margin of 537 votes. In dissent, Justice John Paul Stevens emphasized that “when questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers.” The conservative justices of today’s Court should bear this example in mind—and the stakes for the Court’s legitimacy—when considering whether the Colorado court got this aspect of its interpretation right.
