Beyond Absurdity

The 14th Amendment & Trump 2024

Photo by Jon Tyson via Unsplash

During the Colorado Supreme Court appeal in Anderson v. Griswold Wednesday, the justices and attorneys batted around “The Absurdity Doctrine” when discussing whether Section 3 of the 14th Amendment applies to the Office of the President. 

According to John Manning of Harvard Law, the Absurdity Doctrine recognizes that, despite the best efforts of legislators to make the law make sense, sometimes it can be absurd; that is, there can be unintended consequences or society may evolve such that application of a law may result in unexpected or unfair outcomes. It's a way for the legal system to address unforeseen issues without undermining the overall authority of the legislation, kind of like editing a contract to fix unintended consequences without voiding the entire agreement.

In a zero-trust environment, when weaponized justice is the norm, this level of subjectivity seems dangerous, but the name of the doctrine is certainly appropriate for this case. The regime attempting to disqualify President Trump from the ballot because they can’t fairly defeat him in the political contest is election interference, but the courts entertaining the case is absurd. 

By my count, there are 22 states with 14th Amendment, Section 3 challenges to President President Trump’s 2024 candidacy.

Six states — Florida, Colorado, New Hampshire, Minnesota, Michigan, and now Rhode Island — have declined to prevent President Trump from being on the ballot, and the Colorado case is under review by the Supreme Court, who heard arguments in the appeal Wednesday. 

14th Amendment Cases Everywhere

In Florida, on August 31, a federal district judge ruled that a lawyer and other voters who challenged President Trump’s candidacy didn’t have standing to bring the case. In Minnesota, the Supreme Court dismissed a challenge on November 8, ruling that there’s no law barring President Trump from serving on the primary ballot; the court left it open for challengers to retry the case for the general. 

Over in Michigan, on November 14, a state judge ruled that President Trump followed state law in qualifying for the primary election, deferring eligibility questions about the Presidential election to Congress. Rhode Island’s claim was summarily dismissed on November 27 because the plaintiff failed to show that he suffered ‘injury in fact,’ which is a required component for Section Three of the 14th Amendment.

Challenges are still in play in Alaska, Arizona, Connecticut, Delaware, Kansas, Massachusetts, Montana, New Jersey, New Mexico, New York, South Carolina, Texas, Vermont, Virginia, West Virginia, Wisconsin and Wyoming.

Then there is Colorado, where District Judge Sarah Wallace issued a criminal finding in a civil trial, prompting President Trump to appeal the judge’s ruling – which was, on the surface, in his favor. 

Why is Colorado so Awful?

On November 17, Judge Wallace ruled that “President Trump incited an insurrection on January 6, 2021 and therefore ‘engaged’ in insurrection within the meaning of Section 3 of the 14th Amendment,” but that “Section 3 of the 14th Amendment does not apply to President Trump.”

The first 95 pages of her 102-page ruling affirmed the central narrative, the J6 report, the pseudo-science of far right extremism, thought crimes, speech crimes, and the 14th Amendment being superior to the First.

I detailed all of Judge Wallace’s findings on my substack after her ruling came down, but will summarize here to provide context for Wednesday’s appeal.

On November 17, Judge Wallace affirmed that the Secretary of State cannot independently bar a candidate from the ballot based on a constitutional infirmity unless it is an "objective, knowable fact."

That is, if the disqualification is objective – for example, if a potential candidate is not old enough to run for the specific office, or if a candidate has already served the maximum terms according to legal limits – then the Secretary can prevent the candidate’s name from appearing on the ballot. But the Secretary cannot make a subjective determination of eligibility.

Wallace defined "insurrection" as a public use of force or threat by a group to hinder the execution of the Constitution, and she concluded that the events surrounding January 6, 2021, did constitute an insurrection. 

Judge Wallace rejected President Trump’s argument that his speech was protected under the First Amendment. She also concluded that there does not have to be a conviction of insurrection in order for Section 3 to apply.

Judge Wallace disagreed that she must only consider the "objective meaning" of Trump’s language – absurdity clause – and she found that "objectivity" is not a required part of the Brandenburg test for incitement.

“The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:  

1. The speech is ‘directed to inciting or producing imminent lawless action,’ AND

2. The speech is ‘likely to incite or produce such action.’” — The Brandenburg Test

Judge Wallace found that the first and second Brandenburg factors were met, establishing that Trump engaged in an insurrection through incitement, and that his speech was not protected under the First Amendment.

In coming to this conclusion, Wallace was persuaded by the petitioners’ arguments that Trump was aware of his supporters' willingness to engage in political violence, and that he intended to incite violence at the Capitol to disrupt the certification of the election. Wallace found Professor Simi to be credible and, to be fair, President Trump’s lawyers didn’t explicitly argue against petitioners’ claims, making this determination easy for the judge.  

Regarding disqualification from the presidency under Section 3, Judge Wallace noted limited direct evidence to support the petitioners’ claims, and there was a great deal of debate about the characteristics of an “Officer of the United States,” an “Office Under the United States,” and how the Presidency fits within the text as intended. 

Judge Wallace held that Section Three of the Fourteenth Amendment does not apply to President Trump, and her ruling was immediately appealed by the petitioners. Intervenors President Trump and the Colorado GOP also appealed the seemingly favorable ruling, arguing against Wallace’s findings of fact and conclusions of law before the state Supreme Court Wednesday.

“Our Constitution … is Just a Document”

The appeal of this case was argued before the Colorado Supreme Court for a little over two hours on Wednesday. Jason Murray and Eric Olsen argued for the petitioners, and Scott Gessler argued for the intervenors. 

There were two matters before the court to decide: (1) Does the 14th Amendment apply to the President, and (2) was January 6, 2021 an insurrection. The majority of time was devoted to the first and, again, the questions about the nature of January 6 was more of an afterthought. 

On the first matter, the 14th Amendment, the bulk of debate focused on whether the President – as intended in the text and as historically applied – is an “Officer” as defined in Section 3. There was a lot of discussion about Confederate President Jefferson Davis, and the petitioners drew absurd parallels between the Civil War and January 6.

At what point does this become a mental health diagnosis?

When asked about whether the exclusion of President Trump from the ballot would result in unequal treatment of Colorado Republican voters – considering that President Trump would be on the ballot across the country, but not in the centennial state – Eric Olsen declared that President Trump is disqualified, because Judge Wallace said so, and that President Trump’s inclusion on the ballot would actually dilute the votes of Republicans. 

“We’re worried about our clients, who are Republicans and Independents who filed the suit because they want a fair shot in the Republican primary to vote for a qualified candidate, and have their support for a qualified candidate not be diluted through votes for a candidate who would definitely be disqualified,” Olsen said.

“The pro-democracy, pro-Colorado voter perspective, which is, I think, what we’re looking at here is to declare Trump ineligible before election, “so that the ballot reflects those who are qualified, and the will of the voter can be honored.” 

One of the justices declared that Olsen was placing too much weight on a single reference to “qualified candidate” in the statute. His arguments were picked apart by several of the justices, while it seemed others wanted to help him make his case. 

On the second matter, the insurrection, Olsen maintained that Judge Wallace – in civil court – issued a criminal finding that Trump intentionally incited insurrection, and that her ruling must stand. 

Gessler argued that J6 is more "properly categorized" as "a riot" than an "insurrection." In response, the question of arms came up, and one of the justices asking about the “sharpened flagpoles” and other “homemade weapons.” Gessler argued that the use of impromptu weapons at the capitol was consistent with a riot, whereas a premeditated insurrection, in which participants intended to take over the government, would be more organized, with more intentional weaponry. The justice nodded along as if to accept the distinction. 

Another of the justices stated that, because Gessler didn’t brief the court on counter arguments about the insurrection, they don’t have much to go on to dispute the District Court’s ruling. He seemed to be implying that Gessler had dropped the ball on the argument – which was the entire purpose of the intervenors’ appeal, since the 14th Amendment matter was decided in President Trump’s favor.

We will see if that point foreshadows the ultimate decision. It may be enough to provide an escape hatch for this court to uphold Wallace’s flawed decision while blaming the intervenors for half-ass legal work. 

When Olsen closed out his arguments, he stated, “The Constitution, as we’ve discussed, is just a document.” In case there was any remaining doubt about his disdain for the will of the people.

After two hours, the Chief Justice thanked the parties and ended the proceeding. 

Where Do We Go Now?

The case is expected to be appealed all the way to the United States Supreme Court, and it has to happen quickly.

According to Secretary Griswold’s posted election timeline, citing Colorado statutes 1-4-1204(1.5) and 1-1-106(5), December 29, 2023 is the, “Last day a person whose name has been certified to be placed on the ballot of the March 5th Presidential Primary.”

The court must decide on whether the 14th Amendment applies to the President for the petitioners’ appeal, and whether January 6, 2021 was an insurrection for the intervenors’. 

For the 14th Amendment, if the court upholds Judge Wallace’s determination that the 14th Amendment doesn’t apply to the President, then the petitioners will likely appeal.

For the matter of insurrection, if the court upholds Judge Wallace’s finding that Trump engaged in insurrection, President Trump and the GOP will likely appeal. Both matters have implications for the 22 other 14th Amendment challenges.

There is also the possibility that they will uphold one part of the ruling and overturn the other. For example, they could uphold that J6 was an insurrection and that President Trump incited it, and overturn the decision that the 14th Amendment doesn’t apply to the President. 

That is, they could decide to keep President Trump off the ballot. 

Alternatively, the CO Supreme Court could uphold the 14th Amendment ruling, but overturn the findings about insurrection, in which case the J6 Committee Report would be put back in its proper, solely political, box.

That seems like the right decision, but the Colorado Supreme Court is the court that keeps sending Christian baker Jack Phillips to SCOTUS, so don’t hold your breath. 

The justices did not say when they would issue a ruling but, as stated above, it will be soon, as there is around three weeks before the statutory deadline. 

Stay tuned for the conclusion of this historic — and highly absurd — contest in Colorado. 

Badlands Media articles and features represent the opinions of the contributing authors and do not necessarily represent the views of Badlands Media itself.

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Ashe in America hosts Culture of Change on Badlands Media, Sundays at 6PM ET. If you enjoyed this contribution to Badlands Media, please consider checking out more of her work for free at Ashe in America.

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