The Ballot Boot — or Not
Terry H. Schwadron
Dec. 21, 2023
If you’re seeking one takeaway from the Colorado Supreme Court decision to boot Donald Trump from the ballot as “disqualified,” it’s that the issues surrounding Trump and Jan. 6, 2021, refuse to die.
As with most Trump news, we’re guaranteed more innings with the same set of questions in slightly different forms and venues. Even as we can anticipate a Trump appeal to the U.S. Supreme Court, there are a variety of distinct legal issues that can take precedence, assuring us of political chaos even as we move to the start of primary election season next month.
From the immediate reactions to the 4–3 decision by Colorado’s top justices to declare Trump to be constitutionally disqualified for office, the explosive decision was either the loudest blow for democracy in recent memory or its death knell, depending on your partisan outlook.
But strip away all the commentary and we are left with what appears to be a simple decision posed by the 14th Amendment that bars office holders and “officers” who engage in “insurrection or rebellion” against the Constitution of who offer aid and comfort to insurrectionists from holding office again. It is, after all, the text of the Constitution, for those who rely on specific textual analysis.
This being law and courts, the plain language restriction never ends up being simple.
The truth right now is that we don’t know how a Supreme Court with a 6–3 conservative majority will want to rule. As with abortion or guns, I suspect that the court will decide that issue first, and then backtrack to pick at the legal details to justify its ruling.
That’s why predictions about the legalities involved here are useless.
In Colorado
To reach this decision, the Colorado court overruled a part of a lower court opinion to say that the presidency is an “officer” of the country, just as common sense would suggest. The Trump position is that the presidency is never specified as having to be governed by this restriction. The original plaintiffs were voters and lawyers.
But there are other issues here, including who has jurisdiction to bring the legal challenge and whether a state court can, in effect, block a national candidate in an otherwise federal election.
The single most interesting part of the 200-page decision is confirmation of the lower court’s ruling that found that as a legal matter, Trump participated in insurrection. It doesn’t mean he is guilty of a crime — that is the subject of pending federal and state prosecutions — but it does establish as fact, presumably not-reviewable by the U.S. Supreme Court, that despite Trump focus on his speech that day, the events of Jan. 6 did constitute an attempt to halt government and its democratic election practices.
As columnist David Johnston argues, Trump definitely participated in the “aid and comfort” of convicted insurrectionists — whom Trump now describes as political “hostages.”
Simply translated from the decision, if you try to overthrow your own government by blocking confirmed election results, you should be disqualified from holding office again — and therefore from the ballot.
Nevertheless, the primary ballot in Colorado is due on Jan. 5, and the ruling makes clear that Trump’s name can be included.
Were it not, I’m sure we could anticipate a sudden avalanche of instructions on how to write in Trump’s name — a feat presumably a lot easier for spelling purposes than when Sen. Lisa Murkowski, R-Alaska, did so in her state for other reasons.
The Wider Story
If the U.S. Supreme Court upholds the Colorado decision, we can expect other states to follow suit. Every state’s director of elections is waiting for someone else to have a definitive word.
Curiously, Trump’s lawyers argued for delay in the papers filed with the U.S. Supreme Court over his federal criminal trial and will be arguing for speed in reconsidering this ballot disqualification before the same tribunal.
Whatever else happens because of this court decision, don’t expect that it will move Trump support or opposition.
Among the most interesting of recent political polls was one by Fox News that showed three of 10 Trump supporters say that it is reasonable for a presidential candidate to break rules or laws. Here was the question: “Some people say things in the U.S. are so far off track that we need a president willing to break some rules and laws to set things right, while others say the president should always follow the rules and laws. Which comes closest to your view?”
As Aaron Blake reported in The Washington Post, voters who supported Trump in 2020 were about twice as likely to endorse the break-rules-and-laws view as 2020 Biden backers. While 65 percent of Trump backers said a president should always follow the rules and the law, 30 percent said breaking rules and laws could be justified. The split among Biden voters was 83–15 against breaking rules and laws.
Without sinking into the procedural questions, the question being posed by the Colorado decision is whether we want to honor plotting and scheming towards an insurrection, doing nothing to stop it while it was happening, and using election denial as a Big Lie to be eligible to be our national leader. Of course, if the Supremes uphold the Colorado decision, what about members of Congress who made Jan. 6 possible?
We should welcome a chance to resolve the matter.
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