For those who recognize Donald Trump as the looming threat to democracy that he so clearly is, the news out of Colorado on Tuesday might sound unambiguously positive. The state’s supreme court ruled that Trump can be barred from next year’s Colorado presidential primary, based on the argument that he committed insurrection on Jan. 6, 2021, and is therefore ineligible to become president.
Yet as dangerous as Trump is, we must express some discomfort with this development. Whatever constitutional validity the court’s ruling may or may not have will be determined as the legal process continues playing out. But either way, it could well become Exhibit A in Trump’s continuing project to undermine public confidence in the fairness of America’s elections.
The 2024 cycle is already shaping up to be the most litigated presidential election in history, with the courts likely to play the most significant role they ever have in such contests. To be clear, this is entirely a symptom of the special strain of self-serving chaos with which Trump has infected the body politic.
The worst of his many offenses — his unprecedented attempt to overturn the 2020 election, resulting in the deadly mayhem of Jan. 6 — has itself spawned multiple criminal and civil proceedings. Among them are actions by plaintiffs in several states who argue that Trump should be barred from the ballot under Section 3 of the 14th Amendment.
That post-Civil War passage says that those who have previously sworn allegiance to the U.S., and then broken that oath by engaging in “insurrection or rebellion” (as in, Confederate officers or politicians), cannot ever again “hold any office, civil or military.”
The Colorado Supreme Court is the first to rule — ever— that a presidential candidate can be barred from the ballot based on that section.
Its ruling was the result of complex set of legal and constitutional arguments, including the partial reversal of a lower court decision, but the crux is simple: Trump swore an oath to uphold the Constitution, then violated that oath before and during the Jan. 6 insurrection, making him ineligible for the presidency and therefore excluded from the ballot.
Despite our united view that Trump is fundamentally unfit for office, our discussion on the court’s ruling and its potential impact turned out to be a wide-ranging and somewhat divided one.
On one hand, national presidential elections are in truth 50 separate state elections, and state courts have clear jurisdiction over them. In that sense, the Colorado Supreme Court is theoretically within its power to decide that someone who has committed insurrection against the U.S. is as disqualified for the presidential ballot of that state as, say, someone who is foreign-born or is under 35 years of age.
On the other hand, the offense for which the court has banned Trump from a ballot spot that any otherwise qualified citizen would be allowed to have — insurrection — hasn’t been proven with a criminal conviction and is inherently subjective.
It’s clear to us that Trump engaged in insurrection on Jan. 6. But his supporters, including sitting members of Congress, continue to maintain his innocence. Some continue to spread his big lie of a stolen election.
That’s delusional, but delusion is, sadly, a potent factor in today’s political debates. If the Colorado ruling becomes precedent, it isn’t difficult to imagine state supreme courts in, say Texas or Alabama ruling that the House GOP’s delusional impeachment allegations against President Joe Biden are valid enough to justify excluding him from state ballots. Even though Biden hasn’t been impeached and convicted, might go the argument, Trump wasn’t either.
That slope could get slippery in all kinds of other ways as well. That’s why a U.S. Supreme Court ruling on the Colorado case is now a necessity (and a probability, given Trump’s intention to appeal). Though state elections are separate, the question of what it takes to bar a candidate is in part a constitutional issue, and one that will continue roiling the coming elections state by state until it’s definitively settled.
Meanwhile, Trump has already begun fundraising on the Colorado ruling, using it to advance his theme of personal victimhood at the hands of a corrupt Deep State. It’s corrosive nonsense that, unfortunately, millions of Americans have bought into — nonsense that the Colorado court has just confirmed, in their eyes.
In that sense, Trump’s critics (and we remain solidly among them) should be careful about embracing these and any other court rulings. The victory that came out of Colorado on Tuesday could well turn out to be a pyrrhic one. The clearest and most constructive way to end the Trumpian threat is at the polling place.