Supreme Court expected to reverse Colorado’s Trump ballot ban, side with Justice Samour’s dissent

President Trump isn't being charged under criminal statute passed by Congress concerning 14th Amendment, so his name stays on ballot.

By Ethan Huff

December 22, 2023

By now, you have probably heard all about the Colorado Supreme Court's decision to disallow former President Donald Trump's name from appearing on the state's Republican primary ballot.

But did you know that this ruling may not stand in the end?

It turns out that there were five opinions that have come out of Colorado concerning this matter, none of which agree with the others: the trial court opinion, the Supreme Court majority opinion, and three Supreme Court dissenting opinions.

The only opinions that one might argue are in agreement are the dissenting opinions of Chief Justice Boatright and Justice Berkenkotter, with the most "compelling," according to one X (formerly Twitter) user called "Jarvis" (@jarvis_best), being the dissent from Justice Samour.

"Justice Samour reached holdings that none of the other four groups did," tweeted Jarvis, who describes himself as a "Lawyer, writer, painter, poet, (and) gentleman of culture."

"He examined the issues with the depth and close examination of the case law that is most like how SCOTUS does it."

(Related: Robert F. Kennedy Jr. does not approve of the Colorado Supreme Court's decision against allowing Trump on the ballot, says such a move is not indicative of "a real democracy.")

President Trump isn't being charged under criminal statute passed by Congress concerning 14th Amendment, so his name stays on ballot

Jarvis believes that SCOTUS will ultimately reverse the decision of the Colorado Supreme Court based largely on the dissent of Justice Samour, either in a ruling of 9-0 or 7-2.

As a little background, the Colorado Supreme Court is usually not a deeply divided or partisan court. Though all of them are Democrats who were appointed by Democrat governors, they all have libertarian or liberal, i.e., classic liberalism, viewpoints.

"We get a lot of unanimous opinions," Jarvis explains about how things usually go at the Colorado Supreme Court. "Divisions, when they occur, are typically respectful and intellectually honest. No vitriol."

With that in mind, the Colorado Supreme Court's decision concerning disallowing President Trump's name to appear on the 2024 ballot is somewhat surprising since it was a divided 4-3 ruling.

The majority opinion was also noticeably "sloppy," according to Jarvis, especially considering the case will certainly now head off to the Supreme Court of the United States.

In short, Justice Samour correctly pointed out that Section 3 of the 14th Amendment, which was passed after the Civil War to prevent insurrectionists from holding certain offices, can only be carried out through an act of Congress, according to Section 5 of the 14th Amendment.

Congress did just that in 1870 by passing a law that allows for both civil and criminal enforcement of Section 3 of the 14th Amendment.

In 1948, that law was then repealed and replaced with criminal insurrection law 18 U.S.C. § 2383, which does not apply to President Trump since he has not been charged or convicted under that statute.

"If convicted under that statute – with full criminal due process afforded the defendant – one of the punishments is to be banned from holding office in the United States," Jarvis explains.

"So. Congress – and only Congress – gets to pass legislation enforcing Section 3 of the 14th Amendment ... Congress did so, and it chose to enact a criminal statute that bars anyone convicted under it from holding any office in the U.S. ... President Trump has not been charged or convicted under that statute ... Therefore, Trump can appear on the ballot."

What this all means is that the question regarding whether or not President Trump engaged in an insurrection and whether Section 3 of the 14th Amendment should apply to a president is irrelevant.

"The only thing that matters is that Congress followed the 14th Amendment and established a procedure for barring someone from office for engaging in an insurrection, and that procedure was not followed here," Jarvis says.

The latest news about Trump's bid for the presidency in 2024 can be found at Trump.news.