Commentary by Sanford D. Horn
December 24, 2023
In these United States it is the people who determine elections - who is nominated, and ultimately, who is elected. It is third world, despotic, totalitarian, banana republics where the will of the people is shunned.
And yet, in the Centennial State, the Supreme Court of Colorado, by the slimmest of a four to three majority, decided for all the people when they barred former President Donald Trump from appearing on the primary election ballots of Tuesday, March 5, 2024.
It’s shocking that four seemingly intelligent people with law degrees could make such a myopic ruling on Tuesday, December 19. But apparently not all law degrees are considered equal. Appearing on the Fox News noon program Outnumbered, Michele Tafoya aptly noted, “When you talk about the four judges who voted in favor of this - they’re from Penn Law School, Harvard Law School, Yale Law School, and Virginia. And the three who didn’t vote for this, were all, I think, from Denver - University of Denver.”
Tafoya thought and remembered correctly. The four justices voting to bar Trump from the Colorado primary election ballot were Richard L. Gabriel (University of Pennsylvania Law), Melissa Hart (Harvard Law), William W. Hood III (University of Virginia Law), and Monica M. Marquez (Yale Law). The three dissenting justices, Chief Justice Brian D. Boatright, Carlos Samour, Jr., and Maria E. Berkenkotter, are, in fact, University of Denver Law graduates - and kudos to them for putting politics aside when casting their all important votes. All seven Colorado Supreme Court justices are Democrats.
This is yet, “another reflection on the Ivy League mentality of judicial activism,” said Tafoya, a former NFL sideline reporter.
Chief Justice Boatman “wrote that he believes Colorado election law ‘was not enacted to decide whether a candidate engaged in insurrection,’ and said he would have dismissed the challenge to Trump’s eligibility.”
Opposition to this decision came from both sides of the aisle, swiftly and strongly, as well as from several key legal scholars and constitutional experts.
US Rep. Dean Phillips (D-MN) posted the following on X, on Wednesday, December 20. “Do I believe Trump’s guilty of inspiring an insurrection and doing nothing to stop it? I was there. Absolutely. Do I believe it’s wrong to ban him from the ballot in Colorado without a conviction? Absolutely. Do I believe SCOTUS must opine immediately? Absolutely.”
Phillips is mired in his own ballot battle. He has announced his candidacy for president as a Democrat challenging Joe Biden, but the Democrat Party has all but ruled out any primary elections. Talk about a serious disenfranchisement of the voters.
That is one of the reasons Robert F. Kennedy, Jr. opted to throw his hat into the presidential ring as an independent - lack of the democratic process amongst the Democrats and their so-called leadership. Kennedy also weighed in on the disastrous Colorado court decision.
“Every American should be troubled by the Colorado Supreme Court’s decision to remove President Trump from the ballot,” posted Kennedy on X, December 19. “The court has deprived him of a consequential right without having been convicted of a crime. This was done without an evidentiary hearing in which he is given the basic right of confronting his accusers. When any candidate is deprived of his right to run, the American people are deprived of their right to choose,” continued Kennedy, a graduate of the law school at the University of Virginia.
The Colorado Supreme Court issued a completely flawed decision… and we will swiftly file an appeal to the United States Supreme Court and a concurrent request for a stay of this deeply undemocratic decision,” said Steven Cheung, spokesman for the Trump campaign.
Vivek Ramaswamy, a candidate for the Republican nomination, posted the following on X on December 19. “I pledge to withdraw from the Colorado GOP primary ballot until Trump is also allowed to be on the ballot, and I demand that Ron DeSantis, Chris Christie, and Nikki Haley do the same - immediately - or else they are tacitly endorsing this illegal maneuver which will have disastrous consequences for our country.”
Christie did likewise, adding, “Trump should be prevented from being President of the United States by the voters of this country,” in a December 19 X posting.
While DeSantis did not join Ramaswamy and Christie, he did post that the left is using “judicial power to remove a candidate from the ballot based on spurious legal ground. SCOTUS should reverse.”
“It’s truly unthinkable,” said GOP presidential hopeful Nikki Haley, for unelected judges to make such a decision. “The people of Colorado should be furious,” by their own state court’s ruling, said the former Ambassador to the United Nations. “We should have this race fair and square and have him on the ballot,” continued the former governor of South Carolina. Haley went on to say she will beat Trump fairly and squarely.
The Colorado Republican Party said, “we will withdraw from the Primary as a Party and convert to a pure caucus system if this is allowed to stand,” in a December 19 post on X.
As is typical, liberals, progressives, and Democrats, as evidenced by the Democrat Party’s reluctance or refusal to hold primary elections, believe less is more. That they have to emperil democracy in order to save democracy. This is a bizarre notion - burning down the house in order to preserve the house. Does this sound remotely logical to anyone? Limiting choices for the voters, not expanding the choices. Aren’t the Democrats all about choice?
No, they are not. The only choice they want for the American people is that of ending the lives of their unborn children. Liberals and progressives oppose choice when it comes to educating the children they allow to be born. They oppose choice when it comes to Americans and their health care options. They oppose choice when it comes to the right to either get a vaccine or not get a vaccine. Liberals and progressives are trying to end the people’s right to choose gas-operating vehicles, the right to choose gas-run stoves and ovens.
And the same is true of liberals and progressives trying to limit for whom the American people can vote. Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, said of the ruling, it is “not only historic and justified, but is necessary to protect the future of democracy in our country.” His organization and two law firms filed the lawsuit against Trump on behalf of six Coloradans: Norma Anderson, Christopher Castilian, Claudine Cmarada, Krista Kafer, Michelle Priola, and Kathi Wright.
In the Colorado Supreme Court ruling, the majority wrote, “we conclude that because President Trump is disqualified from holding the office of President under Section 3 [of the 14th Amendment] it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore the Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him.”
How obtuse. Such a decision will only harm democracy and the evidence has come fast and furiously. Texas Lieutenant Governor Dan Patrick, a Republican, suggested that perhaps Texas should deny Joe Biden ballot placement for not securing the Southwestern border and allowing around 10 million illegal aliens to invade the United States. After all, according to the 14th Amendment, Section 3, which those supporting the banning of Trump from the ballot are clinging to, Biden has given aid and comfort to the enemies of the United States - in two ways. One, the allowance of millions of unvetted foreign nationals to take up residence in the United States, and two, giving the Islamic Republic of Iran at least $16 billion, to be used for nefarious purposes against American troops and the troops of American allies.
And back and forth it will go. There are an additional 14 states with lawsuits to bar Trump from those state ballots. Suits from Arizona and Michigan are pending appeal. The following states are filing lawsuits: Alaska, Nevada, New Jersey, New Mexico, New York, Oregon, South Carolina, Texas, Vermont, Virginia, West Virginia, and Wisconsin.
There are numerous faulty ideas within the majority statement. First of all, the Colorado Supreme Court has concluded that Trump is disqualified from holding office when no other legal entity has deemed such. Trump has neither been charged with, nor found guilty of engaging in insurrection, as per Section 3 of the 14th Amendment. When does the Election Code of a state supersede federal election law? And then there’s the point about not counting write-in votes cast for Trump. While the states typically each have their own rules and/or policies pertaining to write-in votes, to not count votes cast is to completely disregard the will of the voters, disenfranchising each one casting such a ballot.
Civil rights attorney Leo Terrell said, “the system is being challenged,” during an appearance on the Fox News program The Faulkner Focus on December 20. “What makes us unique is our rule of law and it’s being questioned. Trump haters are now supporting Trump on the issue that he deserves to be on the ballot. He deserves to face the voters, not four judges, and this is our problem right now - our legal system being tested. This is why the Supreme Court has to rule nine to zero - those judges know what is right and nine to zero is the only ruling that they could come up with,” said Terrell.
In commenting on the Colorado decision and opinion, legal expert Alan Dershowitz said, “It’s clearly unconstitutional. Any talk or accusation of insurrection would prove enough to bar someone, but Trump was never charged or found guilty. There is nothing to this argument - it’s just a political ploy. It is the most undemocratic decision imaginable, [the] most unconstitutional decision I’ve seen in a long time. Taking away the right to vote? It’s your right to vote,” said Dershowitz, professor emeritus at Harvard Law School. “I’m not a Trump supporter, but I want the right to vote against Trump, just like you have the right to vote for Trump, and that right can’t be denied us. The Supreme Court should reverse this and put an end to this nonsense, ” he said.
“It is strikingly anti-democratic, in my view,” said George Washington University law professor Jonathan Turley, on The Ingraham Angle, on December 19. “In my view the court is dead wrong. This is the first major win for the challengers. I think the opinion is really chilling and I think the Supreme Court will make fast work of this - I hope that it does. I think this court did great damage to its own integrity with this opinion. When you read this opinion, the one thing that keeps on recurring is, where’s the limiting principle here? Each of these barriers, the court could have adopted a fairly moderate, or more narrow approach, but it didn’t. On every one of these issues it really took out all the fail safes and went to the broadest possible meaning. That means that states can engage in a tit-for-tat type of series of decisions - you could have red states blocking Biden on some ballots, and blue states blocking Trump.”
In light of the Colorado decision, California’s Lt. Gov. Eleni Kounalakis (D) wants to follow suit. In a letter to California Secretary of State Shirley N. Weber, Kounalakis wrote, “I urge you to explore every legal option to remove former President Donald Trump from California’s 2024 presidential primary ballot… this is a dire matter that puts at stake the sanctity of our Constitution and our democracy.”
Kounalakis couldn’t be more wrong. But then, this is the same person who said two of the qualifications to serve as president of the United States included reaching the age of 40 and not having committed insurrection. According to Article II, Section 1 of the US Constitution, “No person except a natural born Citizen,… shall be eligible to the Office of President; neither shall any Person to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”
Even members of the so-called mainstream media understand the jeopardy the republic would be placed in should the Colorado decision be allowed to stand. Ruth Marcus, in her editorial for The Washington Post wrote, on December 20, “The Supreme Court should toss the Colorado case…. The best outcome, for the court and the country, would be for a unanimous court… to clear the way for Trump to run.”
In the far-left Slate, Lawrence Lessig wrote on December 20, “The Supreme Court must unanimously strike down Trump’s ballot removal.” These folks, and certainly Dershowitz, will not be lining up next November to cast their ballots for Donald Trump. But they are intelligent enough to know the damage to the system of elections many other countries turn to would create not just in the United States, but for the stability of elections the world over.
Removing a candidate from a ballot is what puts at stake the sanctity of our Constitution and democracy, to borrow Kounalakis’ words. Again, Trump has neither been charged nor convicted of encouraging, coercing, or engaging in an insurrection. The attempts to remove Trump or any candidate, from ballots in any state is what is truly deleterious to the future of the republic. When the party in power attempts to remove opposition candidates from any ballot, that partisanship is the work of despots and totalitarians, and is not limited to just supplanting Trump.
Trump has said the following on more than one occasion, but last week may never have been more poignant. “They want to silence me, because I will never let them silence you. And in the end, they’re not after me, they’re after you, I just happen to be standing in their way,” he said during a campaign speech in Waterloo, IA.
“This country is the most successful and stable constitutional system in history. Now, after two centuries of that, what these four justices have done was to introduce a destabilizing element in that system,” said Turley. “This may be the ultimate challenge for Chief Justice Roberts. I don’t have much question they will overturn this decision, but they should do it unanimously. They should do it in one voice - all nine - not divide on this - it’s too important not to speak as one,” concluded Turley.
When constitutional experts like Dershowitz and Turley speak in language with such gravity regarding the future of the electoral system of the United States, it is best to heed the messengers. The partisan machinations by liberals and progressives will most certainly tear down the current system. Today they are going after Trump, tomorrow maybe DeSantis, Haley, or any yet to be thought of candidate from either side of the aisle. The Democrats have already pushed RFK, Jr. out of the party and determined there would be no primaries. When no candidates are safe from removal from the ballot by the shortsightedness and hubris of a handful of unelected judges, the system will have crumbled under its own weight and the republic will cease to exist. It is up to we the people to prevent the death of the republic by speaking out and ensuring as many candidates as possible appear on the ballots in all 50 states and thus secure the preservation and salvation of our republic. OUR republic.
Sanford D. Horn is a writer and educator living in Westfield, IN.
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