A Travesty in Colorado
As the world now knows, the Supreme Court of Colorado has ruled that Donald Trump’s name may not appear on the Centennial State’s ballot for the Republican primary next year. I predict that the U.S. Supreme Court will hear the case soon and overturn it on any of a number of possible grounds.
In the meantime, it is essentially impossible to overstate how bad a ruling this is, both as a matter of law and of public policy. If ever a court decided what it wanted an outcome to be and got it regardless of facts and law, this is it.
In a nutshell, Section Three of the 14th Amendment says that a candidate for certain federal offices can be disqualified if he/she engaged in an insurrection against the United States. Neither the President nor the Vice President is specified in the prohibition, but senators, representatives and others are. The 14th Amendment was passed immediately following the Civil War and was meant to increase federal power at the expense of the states, many of which had, just six years previously, asserted essentially complete sovereign power. Section Three’s prohibition was aimed at individuals who had taken part in the Confederate secession. But, in order to take effect, Section Five of the Amendment states clearly that it requires enabling legislation by Congress. That legislation was once passed but was repealed in 1948 and never replaced. A similar act was drafted in 2021 but never even reached a vote in Congress.
Now, Colorado, like every state, has a law that allows its Secretary of State to litigate whether a would-be candidate for office can be placed on the ballot. That’s because every candidate must satisfy the qualifications for the office sought, so it’s important to have a procedure for determining if candidates meet those qualifications.
Colorado’s procedure is appropriately perfunctory; it’s not meant to adjudicate complex issues, only those like the candidate’s age, residency, etc. Nevertheless, a trial court judge used that procedure to rule that Donald Trump had, through his various bombastic statements about the 2020 election and his supporters’ riot at the Capitol, committed “insurrection,” but is not disqualified because Section Three doesn’t apply to former presidents. The Colorado Supreme Court’s mere 4-3 majority ruling agrees with all the trial court’s findings, but concludes that former presidents are covered by the prohibition.
How bad is that ruling? Let me summarize:
· Section Three lists certain candidates prohibited due to insurrection, but not the president;
· Trump has never been charged with insurrection by anyone anywhere;
· Special Prosecutor Jack Smith could have charged Trump with insurrection, but declined to do so;
· Trump has been denied an opportunity to prove his innocence regarding insurrection;
· The trial court’s hearing failed to provide him adequate due process of law;
· Trump’s speech is all but unquestionably protected by the U.S. Constitution;
· Section Three requires enabling legislation to be effective;
· There is no such legislation;
· An 1868 Supreme Court precedent makes clear the need for enabling legislation;
· As constitutional precedent, the state court was obligated to abide by it;
· It did not do so;
· States have no power to pass Section Three enabling legislation;
· All the judges in the Colorado case are Democrats;
· Despite that, three of the seven dissented from the decision;
· The trial judge donated money to an organization whose mission includes prohibiting Trump from appearing on the ballot;
· The trial judge failed to recuse herself despite the obvious appearance of a conflict of interest;
· Courts in two states have already considered disqualifying Trump and refused to do so.
The court’s ruling occurred amid highly relevant context: For seven years now, the Democratic Left has gone to extraordinary lengths to remove Donald Trump from office once he was elected, hamstring him while he was there and keep him from even the possibility of reelection. Those have included a tsunami of lies and misrepresentations by the news media, the Clinton campaign, the Biden Administration and social media, bizarre notions about state electors nullifying the wishes of the electorate and that the 25th Amendment disqualifies Trump from office. Multiple investigations of utterly false claims initiated by the Clinton campaign came to nothing, despite the lavish funding of a special prosecutor, as did two separate impeachment proceedings. More recently, it’s been indictment on 91 separate charges with civil lawsuits tossed in for good measure.
Perhaps the most significant recent context is that Trump’s electoral support continues to grow while Biden’s is at an all-time low and dropping. Poll after poll shows Trump defeating Biden.
The Colorado case is simply the latest chapter in the seemingly-never-ending story and will be seen as such. This is not about law; it’s about politics and the rule of left-wing elites. These people will apparently stop at nothing to deny voters a free choice at the ballot box. According to Axios, similar cases are pending in “more than a dozen” states. Should Trump actually be elected, only Divine Providence knows what they’ll come up with next. MSNBC’s Joe Scarborough has already called for Trump’s “elimination.”
I’ve said this before: I don’t like Trump, have never voted for him and won’t next year. But whatever your take is on Trump, this is less about him than about the future of representative democracy in the United States. If one political faction can do this to an opposing candidate, it can do it to another. And other factions can do the same. Does anyone seriously believe that, were the Supreme Court to approve the Colorado ruling, it wouldn’t be open season on candidates of all political persuasions? This case, like all the anti-Trump attacks before it, is anti-democratic through and through. Its plain purpose is to deny to the American people one popular candidate and help elect his unpopular opponent.
None of this will be forgotten. Democracy in the United States now hangs on the word of the Supreme Court. Meanwhile, peaceful options continue to diminish.