The unsigned decision disqualifying Trump from Colorado’s 2024 ballot confirms what experienced litigants know – politics often trumps justice.
Whether you like Trump or
not, the contentious 4-3 decision rests on weak factual grounds, shaky legal theory, and no compelling authority, and warrants anticipated closer review by the U.S. Supreme Court (which
the decision's majority seems to dare).
Three of the court’s seven judges (usually called justices at the supreme court level) dissented, that is, disagreed formally (and vehemently and at length), including its chief justice. In sum, they object to the lack of required due process. It was like using traffic court to convict for murder. Excerpts follow:
“My opinion that [the
case against Trump should have been dismissed] is dictated by the facts … particularly
the absence of a criminal conviction ... The questions presented here
simply reach a magnitude of complexity not contemplated by the Colorado General
Assembly for its election code enforcement statute. The proceedings below ran
counter to the letter and spirit of the statutory timeframe because the [claim
against Trump] overwhelmed the process. In the absence of an
insurrection-related conviction, I would hold that a request to disqualify a
candidate under Section Three of the Fourteenth Amendment is not a proper cause
of action ….” Chief Justice Boatright
“I have been involved in
the justice system for thirty-three years now, and what took place here doesn’t
resemble anything I’ve seen in a courtroom. In my experience, in our
adversarial system of justice, parties are always allowed to conduct discovery
[i.e. learn ahead of time about each other’s claims and evidence], subpoena
documents and compel witnesses, and adequately prepare for trial, and experts
are never permitted to usurp the role of the judge by opining on how the law
should be interpreted and applied. … [H]ow
can we expect Coloradans to embrace this outcome as fair?” Justice Samour
“Setting aside the
factual questions, an insurrection challenge is necessarily going to involve
complex legal questions of the type that no district court—no matter how hard
working—could resolve in a summary proceeding. And that’s to say nothing of the appellate
deadline. Three days to appeal a district court’s order regarding a challenge
to a candidate’s age? Sure. But a challenge to whether a former President
engaged in insurrection by inciting a mob to breach the Capitol and prevent the
peaceful transfer of power? I am not convinced this is what the General
Assembly had in mind.” Justice Berkenkotter
Sadly, the one judge majority apparently lacked the courage or courtesy to have its author sign the decision, dodging 2 million plus Colorado Trump voters. In other words, one unknown judge disenfranchised all those folks. This is even more stunning given this bench's recent public infatuation with so called Diversity Equity and Inclusion.
Democracy doesn't work like that, and should be remembered next time all 4 majority justices - Richard Gabriel, Melissa Hart, Monica Marquez, William Hood - are up for re-election/retention.
The case is Anderson v. Griswold, 23SA300, 2023 CO 63 (12/19/23).
