Day: December 20, 2023

One of the court challenges to Donald Trump’s eligibility to run for president in 2024 has finally struck gold.

The Colorado Supreme Court’s ruling to disqualify the former president from the Republican Party’s upcoming primary ballot is yet another unprecedented moment in US politics.

It’s a decision that further blurs the lines between America’s political and judicial systems, setting up a fresh collision between the election campaign and the courts.

However, this latest legal setback is unlikely to seriously damage Mr Trump’s bid to return to the White House – and he is already using it to his political advantage.

The activists who brought the case in Colorado – a liberal watchdog group and collection of anti-Trump Republican and independent voters – may be celebrating their victory.

But the response so far by Democratic politicians – the ones who will stand before voters next year and are working to defeat Mr Trump at the ballot box – tells a different story.

This isn’t a fight they want.

Colorado Secretary of State Jena Griswold – who had declined to act unilaterally to block Mr Trump from the state’s primary – issued a response to the court’s decision on Wednesday that didn’t exactly drip with enthusiasm.

“This decision may be appealed,” she said. “I will follow the court decision that is in place at the time of ballot certification.”

Part of the reason for her seeming reluctance to weigh in – and the relative silence of other Democrats – is that the ultimate outlook for the Colorado challenge isn’t bright.

Mr Trump’s campaign is already promising to appeal the decision – directly to the US Supreme Court. According to Samuel Issacharoff, a professor of constitutional law at New York University, the appeal will almost certainly be granted, particularly given that other state courts have considered, and rejected, similar lawsuits.

“It cannot be that the national candidacy for presidency is determined on a state by state basis,” he said. “That would be a breakdown of the democratic order.”

The Supreme Court currently has a six-to-three conservative majority. And while the justices, even the three appointed by Mr Trump, have shown a willingness to rule against the former president in previous cases, Mr Issacharoff believed they would be extremely reluctant to be seen as limiting voters’ options at the ballot box.

Democrats may also be concerned that the legal challenges – and the Colorado ruling – plays into one of the central messages of Mr Trump’s campaign, that the ruling elite is threatened by his political movement and are willing to subvert the will of the people to keep him from power.

Watch: What Trump’s Republican rivals are saying about Colorado Supreme Court ruling

Trump Campaign Spokesman Steven Cheung called the Colorado ruling “completely flawed”. He said it was a sign that Democrats had lost faith in President Joe Biden and “are now doing everything they can to stop the American voters from throwing them out of office next November”.

Meanwhile, Mr Trump’s Republican rivals are largely rallying around him, as they have during all of the former president’s legal battles this year.

Florida Governor Ron DeSantis called the Colorado decision an abuse of power. Vivek Ramaswamy said he would remove his own name from the state’s primary ballot. The Republican Party of Colorado has threatened to cancel the primary entirely and pick their choice for a nominee through a caucus process.

“We’re going to win this the right way,” said former South Carolina Governor Nikki Haley, who may be Mr Trump’s closest challenger. “The last thing we want is judges telling us who can and can’t be on the ballot.”

Democrats may be frustrated that, at least so far, Mr Trump seems to have avoided any price – political or legal – for the role he played in the 6 January 2021 attack on the US Capitol.

The former president has been indicted on charges related to his attempts to overturn the 2020 election twice – by federal prosecutors and by a district attorney in Georgia. But those trials, which will be decided by citizen juries and not judges, are still months away, if not longer. And it may be telling that special counsel Jack Smith, who is heading the federal case, has brought narrow charges that don’t rely on directly proving that Mr Trump led an insurrection.

The decision by the Colorado Supreme Court may have offered a dramatic moment of accountability that some Trump critics are craving, but it also is likely to be a temporary one. And, in the end, it may make it more likely the former president returns to power, not less.

But, unlike Bush v. Gore, the Supreme Court should take this case, which Trump has already announced he will appeal. Yes, once again, whatever the justices do will be interpreted through the distorting lens of partisanship. A decision that allows Trump to remain a candidate despite his role in the Jan. 6, 2021, insurrection — the most likely result, in my view — will be derided as the work of “partisan hacks,” to use Justice Amy Coney Barrett’s resonant phrase, siding with the party that appointed them.

That skepticism would be understandable, given the record of this court’s aggressive conservative majority. But it would also be wrong, because Section 3 of the 14th Amendment should not be used to prevent Americans from voting to elect the candidate of their choice. The best outcome, for the court and the country, would be for a unanimous court — preferably an 8-0 court with Justice Clarence Thomas recusing himself — to clear the way for Trump to run.

To back up, Section 3 of the 14th Amendment provides that “no person shall … hold any office, civil or military, under the United States … who, having previously taken an oath, as a member of Congress, or as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Unlike the rest of the 14th Amendment, this post-Civil War provision, aimed at former Confederate officials, has been little used, then or in subsequent years. But Jan. 6, 2021, revived attention to the once-obscure provision, and challenges under Section 3 have been filed in multiple states.

On Tuesday, the Colorado Supreme Court found that Section 3 applies to Trump and therefore bars him from appearing on the state’s March 5 presidential primary ballot. The court divided 4-3; all seven justices were appointed by Democratic governors.

A lower court had found that Trump engaged in insurrection but was not covered by Section 3 based on an implausible reading under which “officer of the United States” did not include the president. It defies logic to believe that the framers of the amendment meant to exclude former Confederate soldiers from all offices but the most important, and the Colorado Supreme Court was correct to disagree with this interpretation.

“President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land,” the majority wrote. “Both results are inconsistent with the plain language and history of Section Three.”

But the majority agreed with the lower court that Trump’s conduct amounted to engaging in insurrection under Section 3. “President Trump did not merely incite the insurrection,” it said. “Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”

The three dissenting justices each wrote separately. The most interesting came from Justice Carlos Samour Jr., who said barring Trump from the ballot without legislation from Congress implementing Section 3 violates Trump’s due process rights, especially because Trump has not been charged with insurrection.

“More broadly, I am disturbed about the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis,” Samour wrote. “Surely, this enlargement of state power is antithetical to the framers’ intent.”

Chaos indeed, which is why the high court needs to step in. Beyond what I think is the unconvincing avenue of text-parsing arguments about the meanings of “office” and “officer,” the justices have two major potential off-ramps at their disposal.

One — and this would be my preference — involves the question Samour raised: whether Section 3 is self-executing. Here, the justices have the benefit of a decision by Chief Justice Salmon P. Chase in 1869 — the year after the 14th Amendment was ratified — that Section 3 requires enabling legislation.

In that case, from the days when justices rode the circuit, Chase ruled in the case of a formerly enslaved Black man who argued that his conviction for assault was void because the presiding judge had served in the Confederacy and was therefore disqualified from holding judicial office. Chase found that “legislation by Congress is necessary to give effect to the prohibition, by providing for such removal.”

A second, more troubling, avenue would be for the justices to conclude, in opposition to the Colorado Supreme Court, that Trump’s speech is protected by the First Amendment and therefore cannot be punished as insurrection. In the seminal 1969 case, Brandenburg v. Ohio, the court said that “mere advocacy” of violence can’t be punished “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Trump would surely seize on any such finding as vindication for his appalling behavior, which makes the Chase solution a better alternative.

But there is no world in which the justices are going to empower states to throw Trump off their ballots. Given that, the court should keep in mind: This is a moment it should aspire to be the unanimous court of Brown v. Board of Education, not the splintered, party-line body of Bush v. Gore.

On that score, it was fitting that the Colorado court’s ruling arrived on the day of the memorial service for Justice Sandra Day O’Connor, who was reliably reported to have regretted her vote with the Bush v. Gore majority.

“Probably the Supreme Court added to the problem at the end of the day,” O’Connor told the Chicago Tribune in 2013. That is a good test for the current court. Will its eventual ruling — and one seems unavoidable — add to the problem or help resolve it?