Historian debunks 'five key errors' about Trump’s disqualification from CO ballot

27 December 2023

A state supreme court disqualifying a former US president from appearing on a ballot is certainly unprecedented in American history, and one historian says that's led to political commentators and media outlets mistakenly spreading erroneous information.

In a post to his website Pints of History, historian David W. Tollen – a bestselling author and lecturer at University of California-Berkeley — explained the five most common errors believed about former President Donald Trump's disqualification from the Colorado Republican primary ballot in 2024.

Tollen said the Anderson v. Griswold decision from Colorado that will now be decided by the Supreme Court of the United States (SCOTUS) "touched off a storm of bad reporting: errors about the law, history, and basic facts surrounding the conclusion that Donald Trump is disqualified from holding office."

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Error #1: Several other courts have ruled that Trump is not disqualified

Tollen explained that Colorado's supreme court is the first judicial body to decide whether section 3 of the 14th Amendment to the US Constitution (also known as the insurrection clause) disqualifies the former president. Rather, Tollen said other courts have ruled instead on smaller procedural questions, like if a plaintiff has "standing" to bring a case to the court. Notably, Tollen included Wednesday's ruling from the Michigan supreme court keeping Trump on the primary ballot as a "procedural" ruling, as one justice made clear that plaintiffs could still seek to have Trump removed from the general election ballot at a later time.

Error #2: Disqualification would take the decision away from the people

According to Tollen, one common misconception about disqualification is that it supposedly deprives voters of the right to decide Trump's fate in 2024. As the historian explains, the Constitution was written by the framers specifically to take certain decisions out of the hands of whatever side happens to have a majority at a given time in history. He cited the insurrection clause as one specific element of the Constitution that is needed to deprive the majority of certain rights.

"Congress and the states enacted Section 3 because they knew Southern voters would elect ex-Confederates, and they wanted to block those majority votes," Tollen wrote. "Note also that removing Trump from the ballot does not actually take away anyone’s vote, assuming it’s done before votes are cast. It just removes one candidate, leaving populists and other Republicans plenty of other options."

Error #3: Disqualification violates Trump's due process rights

As Tollen explained, the US Constitution guarantees due process rights (where a person is innocent until proven guilty in a court of law) as they pertain to the deprivation of "life, liberty and property." Stripping someone of political office, on the other hand, does not require a conviction in court. He added that if there was any process to Trump's contesting of his right to run for office, he "may have already gotten it in Colorado."

Error #4: Disqualifying Trump will hurt Democrats politically

In his post, Tollen said the misconception that Democrats were somehow at the root of the disqualification effort was false, describing the people behind the Anderson case as "conservative and liberal citizens, acting on their own." Tollen added that for his part, he believes President Joe Biden likely hopes Trump will remain on the ballot.

"Trump is the only Republican candidate carrying more political baggage than Biden. So a Trump nomination gives Biden his best odds of reelection," he wrote.

Error #5: SCOTUS will overturn Anderson

The Anderson ruling came with an automatic stay until January 4, meaning Trump's disqualification wouldn't go into effect until early next year, likely in anticipation that SCOTUS would weigh in. Tollen wrote that despite the Court's 6-3 majority, it would be wrong to assume that SCOTUS would automatically side with Trump. He added that the Court's conservatives — Associate Justice Brett Kavanaugh and Chief Justice John Roberts in particular — "regularly apply 'original intent,' interpreting the Constitution as close as possible to the Framers’ intent."

"Original intent may work against Trump," Tollen wrote. "The deeper legal issues lie beyond the scope of this article, but there are good arguments that the authors of the Fourteenth Amendment meant to keep people like Trump out of office."

Click here to read Tollen's post in full.

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