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The Politician BehindTrump v. Anderson Still Doesn’t Understand Why She Lost

The US Supreme Court released its ruling on Trump v. Anderson this week and unanimously slapped down the Colorado Supreme Court which had tried to disqualify candidate Donald Trump from the Colorado ballot using section 3 of the Fourteenth Amendment to the US constitution.

The US Supreme Court's ruling was so baseless in law that even the most Left and partisan members of SCOTUS joined the majority in declaring the Colorado ruling null and void. 

The case had been initiated by the former GOP majority leader of the State Senate, Norma Anderson. I had the misfortune of working with Anderson in the days when I worked with the Colorado General Assembly, and the important thing to know about Anderson is that she is the ultimate establishment Republican— a George W. Bush-John McCain Republican. Naturally, then, she is not exactly a fan of Donald Trump. 

So, even though excluding Trump from ballots in Colorado would be unlikely to have any effect on the outcome of the 2024 election, Anderson had to virtue-signal about Trump by pursuing efforts to disenfranchise local voters. She asked the old, rich, white people on the Colorado Court to declare that voters in Colorado don't get to vote for their preferred candidate. 

Moreover, Anderson's status as a Bush-style Republican is reflected in her lawsuit's contempt for due process and the rule of law. (Bush supporters, of course, are largely characterized by enthusiastic support for the shredding of basic constitutional rights through legislation like the Patriot Act.) Anderson's lawsuit attempts to disqualify Trump based on a presumed fact that has not been established. That is, Anderson's suit simply assumes that Trump is guilty of some sort of insurrection even though Trump has never been convicted of any such thing. He hasn't even been charged with any crime of that sort. The fact that Anderson apparently believes that sanctions for crimes do not require an actual conviction is troubling.  

On top of this, Anderson made clear in an interview this week that she doesn't even understand the SCOTUS ruling. For example, as reported by the local Fox affiliate

“The Constitution says it’s the state’s right for anything that is not explicitly explained in the rest of the Constitution. Elections aren’t. Other than electors,” Anderson said, pointing out that electors are decided by states. “So that portion disappointed me — that we don’t have that right as to who’s on the ballot.”

Anderson is here making a clumsy attempt to invoke the Tenth Amendment (to the US constitution) which states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

As far as I can tell, this is the first time in history that Anderson has ever expressed any concern for a broad application of the Tenth Amendment. But she's wrong in any case since the SCOTUS didn't actually say that the state can't decide who is on its ballot. The SCOTUS ruling said that a state can't disqualify a candidate using section 3 of the Fourteenth Amendment. There are other ways that states can exclude candidates, of course. And that's as it should be. 

The text of the Amendment, however, is clear that section 3 is a matter for Congress. 

Moreover, Anderson's claim that "elections aren't" mentioned in the constitution is puzzling. Her case is based primarily on the Fourteenth Amendment which covers candidate eligibility and includes the phrase "the right to vote" in section 2. Perhaps no one explained to Anderson that the Fourteenth Amendment is part of the US constitution. (She might also try reading the Nineteenth Amendment which reads: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex," or maybe the Twenty-Six Amendment which says that the " vote shall not be denied or abridged by the United States or by any State on account of age.")

I'm no legal scholar but I'm pretty sure the constitution mentions voting and elections. 

All that said, I'm of the view that state governments should be able to decide for themselves who is on the state's ballots without any federal intervention whatsoever. I wish that Anderson's imaginary version of the constitution were real and that the US constitution did not, in fact, mention elections. That would mean that the Tenth Amendment would truly exclude any and all federal meddling in state election laws. (This was actually the case before the ratification of the Fourteenth Amendment.)

Moreover, SCOUTS's ruling in Trump v. Anderson is not really opposed to the Tenth Amendment since the ruling only reiterates section 3 of the Fourteenth Amendment is a federal restriction on candidates. 

We might also mention that Anderson's legal approach shows a contempt for state law, as well. What she and her legal team tried to do was take a federal law and then turn it into a state law without going through the actual trouble of passing new state legislation. Theoretically, any state ought to be free to exclude candidates convicted of certain crimes. But that needs to be based on state legislation and the state constitution. Simply cutting and pasting a federal law into your lawsuit—and then saying it should count as a state regulation on ballot eligibility—is not exactly in the spirit of the Tenth Amendment, either. 

Anderson's other problem is that she apparently didn't care if Trump was actually convicted of anything, nor did she care if state law actually provided for the same prohibition outlined in the Fourteenth Amendment. Colorado politicians can't simply turn federal laws into state laws via wishes and hopes. That's not how it should work. If Anderson wants a state law that excludes people from the ballot for being suspected—but not convicted—of certain crimes, she should hire a lobbyist and try to pass legislation of that sort. That's how state laws are supposed to work. 

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Ryan McMaken
Ryan McMaken is the editor of Mises Wire and The Austrian. Send him your article submissions, but read article guidelines first. (Contact: email; twitter.) Ryan has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
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