December 20, 2023

Trump Disqualified

“Former President Donald Trump is disqualified from serving as U.S. president and cannot appear on the primary ballot in Colorado because of his role in the Jan. 6, 2021, attack on the U.S. Capitol by his supporters, the state's top court ruled Tuesday. The historic 4-3 ruling by the Colorado Supreme Court, likely to be taken up by the U.S. Supreme Court, makes Trump the first presidential candidate deemed ineligible for the White House under a rarely used constitutional provision that bars officials who have engaged in ‘insurrection or rebellion’ from holding office.” Reuters

Both sides urge the Supreme Court to take the case and issue a ruling expeditiously:

“It is imperative for the political stability of the U.S. to get a definitive judicial resolution of these questions as soon as possible. Voters need to know if the candidate they are supporting for President is eligible. And if we don’t get a final judicial  resolution before January 6, 2025 a Democratic-majority Congress could decide Trump is disqualified even if he appears to win the electoral college vote. That would be tremendously destabilizing…

“In the end the legal issues are close but the political ramifications of disqualification would be enormous. Once again the Supreme Court is being thrust into the center of a U.S. presidential election. But unlike in 2000 the general political instability in the United States makes the situation now much more precarious.”

Rick Hasen, Election Law Blog

“The Supreme Court is not going to be able to duck the issue or delay it… There are two problems with getting the question to the Court: Somebody needs to have standing, and the Court won’t leap to the issue if it thinks it can be put off until later. The Colorado supreme court just bulldozed both of those objections… Merry Christmas, John Roberts. Hope you and your colleagues didn’t have plans.”

Dan McLaughlin, National Review

Other opinions below.

See past issues

From the Left

“[Section 3 of the 14th Amendment] disqualifies officials who ‘have engaged in insurrection’ against the United States from holding federal office. By most readings, it’s one of very few constitutional qualifications for the presidency along with the original document’s requirements, in Article 2, that the president be at least 35 years old and born in the United States…

“In that sense, the Colorado Supreme Court’s holding is no more exotic than dozens of past court rulings that a candidate fails to meet constitutional qualifications such as age. And were we to adopt the view of Trump’s lawyers, Colorado and other states could not exclude candidates from the ballot even if they plainly fail to satisfy age, residency, citizenship and other requirements. The potential political impact of the ruling, however, could not be more seismic.”

Harry Litman, Los Angeles Times

“The post-World War II German constitution set up a procedure and a legal framework by which certain politicians or parties deemed dangerous to the constitution could be restricted from running for office. ‘It’s a very complex and highly regulated procedure,’ said [Harvard political scientist Daniel] Ziblatt — involving federal and state offices, a bureaucracy, court approval, and necessary legal steps…

“The problem with the 14th Amendment option, [two political scientists] told me, is that the US did not establish a consistent procedure or institutional authority for excluding candidates after the Civil War. ‘We have no agreed-upon institutional mechanism in place, no electoral authority, no judicial body with precedent and practice that all the major political forces agree should be empowered to make this decision’… A Trump win in 2024 would be deeply dangerous for American democracy. Yet taking away voters’ option to choose him would pose its own perils.”

Andrew Prokop, Vox

From the Right

“It should go without saying that the Colorado Supreme Court does not have the authority to do this. In the first place, Donald Trump has neither been charged nor convicted of insurrection. That is also the last place, and the middle place, and every place in between. You say Donald Trump is a threat to democracy? This finding is more a threat to democracy literally than anything Trump has ever done…

“The decision is stayed pending an appeal to the United States Supreme Court. If SCOTUS lets this stand, we will spend 2024 with Democrats going state by state literally trying to fix the election unambiguously using an argument at least half the country will consider not only illegitimate, but possibly worth fighting in literal terms. January 6th will look like a child’s birthday party in comparison.”

John Podhoretz, Commentary

“Section 3 of the 14th Amendment precluded those who were federal officials before the Civil War, and then served in the Confederacy or its army, from again holding federal office after 1865…
“The January 6 protest, which certainly did get out of hand, was not an ‘insurrection’–insurrectionists would have remembered to bring at least one firearm–and Trump urged those who were present in Washington that day to go forward and protest peaceably and legally. Not exactly Fort Sumter…
“So, where do we go from here? We are in uncharted waters. Never before have we confronted a situation when one political party, that controls a particular state or its highest court, has tried to prevent a candidate of the opposing party from running for president. One cannot overstate what a watershed moment this is. The Democratic Party has staked a claim to permanent control of our federal government, regardless of the will of the American people. This has never happened before in our nation’s history.”
John Hinderaker, Power Line Blog

A libertarian's take

“What's the endgame here? President Joe Biden (or whomever the Democratic nominee turns out to be) is likely to carry Colorado whether Trump is on the ballot or not. Let's suppose courts in other blue states follow Colorado's example…

“In one scenario, Trump loses but his supporters are able to nurse a permanent grievance that the system wouldn't even let their guy compete. Not for the abstruse reasons that Trump's team tried to conjure up after the 2000 results came in, but because of something that's easy to understand and easy to see as a legitimate grievance…

“In another scenario, Trump wins the Electoral College—remember, these states weren't likely to vote for him anyway—but with a far lower percentage of the popular vote. Indeed, the popular and electoral votes would be even more mismatched than in 2016 or 2000. In terms of democratic legitimacy, that outcome might be even worse for the future of the country.”
Eric Boehm, Reason

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