Colorado SCOTUS Kicks Trump Off Primary Ballot For Insurrecting

Gosh, will the US SCOTUS let that stand?

Photo by Joshua Woods on Unsplash

Colorado’s state supreme court briefly got Americans’ hopes up yesterday, ruling that Donald Trump is ineligible to be president because he tried to overthrow the 2020 election, and therefore he can’t be on the state’s primary election ballot. But then everyone remembered who’s actually on the US Supreme Court and said, “Well sure, the 14th Amendment is pretty plain in its meaning, and Trump definitely did an insurrection, but no way those bozos will let the Colorado decision stand.” That’s a pretty difficult thing for an entire nation to say in unison, so it mostly sounded like millions and millions of people saying “Well, shit.”

Still, it was something, the first time that Section 3 of the 14th Amendment has been invoked to shitcan an insurrectionist’s presidential bid. The post-Civil War amendment designed to keep former Confederates from holding office after the war says, in that lovely circumlocutory style of olden times,

No person shall ... hold any office, civil or military, under the United States ... who, having previously taken an oath ... 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.

All seven of the Colorado supreme court justices agreed with a lower court’s finding that Trump committed insurrection after swearing an oath to uphold the Constitution, but three members weren’t sure that Colorado law could ban him from the ballot because of that. The lower court found that Trump had insurrected the shit out of the 2020 election, but that the 14th Amendment didn’t specify that the president is an “officer of the United States,” so shruggy emoticon he could stay on the ballot.

In their decision, the majority wrote,

We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.

The decision doesn’t just keep Trump off the Colorado primary ballot, but also directs Colorado Secretary of State Jena Griswold not to count any write-in ballots for Trump either. And probably not any that say “MAGA, FUCKER!” or contain misspelled death threats.

The court put a stay on its decision until January 4, a day before the primary ballot has to be finalized, to give the US Supreme Court time to hear the appeal that Trump’s campaign is promising already.

Also too, clearly aware that the case will be going to the US Supreme Court, the decision notes that one guy who’s there now had previously ruled on Colorado’s election laws back when he was a US appeals court judge in 2012:

As then-Judge Gorsuch recognized in Hassan, it is “a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

Neener, and let us cite previous case law, neener.

But no matter how clear the constitutional language, the current crop of rightwing loons on the US Supreme Court — three of them appointed by Trump — isn’t likely to be too worried about that, and will almost certainly find (or make up) a rationale to throw out the Colorado decision. After gratuitously tossing out the decades of settled law on Roe v. Wade two years ago, it’ll probably be a cinch for the Alito Court to dismiss a state court’s decision on the 14th Amendment, because golly, nobody’s ever actually used that in a presidential election and how dare you try this completely novel reading of the plain language of the Constitution?

Los Angeles Times legal columnist Harry Litman explores several options the Supremes might use to deep-six the Colorado decision, from rejecting the finding that Trump had engaged in insurrection (unlikely, he says, because the Court seldom reverses findings of fact), to narrowly ruling that a president isn’t an “officer” under the 14th Amendment, or maybe faulting the legal definition of “insurrection” as Colorado applied it. (Republicans are already insisting that since Trump hasn’t been found guilty of any insurrectioning in a court, he’s golden, although the 14th Amendment doesn’t set conviction as the standard, either.)

Or maybe, Litman says, the Court will agree with one of the Colorado justices who dissented that courts can’t rule on a 14th Amendment disqualification on their own:

Colorado’s chief justice, Brian D. Boatright, advanced that reasoning in his dissent, arguing that disqualification on 14th Amendment grounds has to take place somewhere other than a court. “Unlike qualifications such as age and place of birth,” he wrote, “an application of Section Three requires courts to define complex terms, determine legislative intent from over 150 years ago, and make factual findings foreign to our election code.” […]

The nation’s highest court would have to find something in the language of Section 3 that precludes adjudication by a state court. For example, it might hold that the text, structure and history of the section indicate that only Congress can make the essentially political judgment to execute the provision.

When in doubt, the current Supreme Court has a tradition of just making shit up, so there’s little reason to expect it’ll be bound by mere annoyances like the text of the 14th Amendment.

And Republicans are already roaring back with their own made-up whatabouts, like Texas Leftenant Gov. Dan Patrick, who mused that Texas should take Biden off its ballot because he’s an insurrectionist traitor too, you know:

"Seeing what happened in Colorado makes me think — except we believe in democracy in Texas — maybe we should take Joe Biden off the ballot in Texas for allowing eight million people to cross the border since he’s been president disrupting our state for more than anything anyone else has done in recent history," Patrick told Fox News' Laura Ingraham on Fox News.

In addition, annoying loser Republican candidate Vivek Ramaswamy proclaimed that, in solidarity with Trump, he too would demand to be left off Colorado’s primary ballot, prompting a divided nation to shrug and agree, “Yeah, whatever, guy, you do that.”

[Anderson v. Griswold decision / AP / NBC News / LAT / Messenger]

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