On the menu today: Four justices on the Colorado supreme court have ruled that former president Donald Trump engaged in an insurrection and that his speech on January 6, 2021, was not protected by the First Amendment. Thus, they declared, Trump is ineligible to serve as president again and cannot appear on the 2024 Republican presidential-primary ballot. A U.S. Supreme Court majority is probably going to swat this down like Shaquille O’Neal, but for now, the twisty-turning 2024 presidential campaign has another sudden swerve, and the strong possibility of a Colorado presidential ballot that lists many parties’ nominees . . . but no Republican nominee.
Colorado Supremes: Trump Is Guilty of Insurrection and Can’t Appear on the 2024 Ballot
This morning, the New York Times, Wall Street Journal, and Washington Post all have the same top story: that as of this moment, the Colorado Republican primary will not feature Donald Trump on the ballot. But that decision could be reversed, depending upon how quickly the U.S. Supreme Court moves. Here’s how the Post summarized the bombshell decision from the Colorado supreme court:
In a historic decision Tuesday, the Colorado Supreme Court barred Donald Trump from running in the state’s presidential primary after determining that he had engaged in insurrection on Jan. 6, 2021.
The 4-3 ruling marked the first time a court has kept a presidential candidate off the ballot under an 1868 provision of the Constitution that prevents insurrectionists from holding office. The ruling comes as courts consider similar cases in other states.
If other states reach the same conclusion, Trump would have a difficult — if not impossible — time securing the Republican nomination and winning in November.
The decision is certain to be appealed to the U.S. Supreme Court, but it will be up to the justices to decide whether to take the case. Scholars have said only the nation’s high court can settle for all states whether the Jan. 6 attack on the U.S. Capitol constituted an insurrection and whether Trump is banned from running.
Now, the decision of whether Trump will appear on the state’s general-election ballot has yet to be determined because the GOP hasn’t nominated Trump for president yet. But it is reasonable to conclude that a candidate legally disqualified from the primary ballot would also be legally disqualified from the general-election ballot. This means that if the GOP remains on this course and nominates Trump, and this state supreme court decision is not overturned, then in November 2024, the Colorado ballot will feature Joe Biden . . . and no Republican option.*
Four justices of the Supreme Court of Colorado — Monica M. Márquez, William W. Hood III, Richard L. Gabriel, and Melissa Hart — just went way out on a limb. Those four justices concluded:
-
The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection.”
-
The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.
-
President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.
Just a week ago, Michigan’s court of appeals ruled Trump could remain on the state’s 2024 GOP primary ballot and would not be disqualified from running in the state under Section 3 of the 14th Amendment. Last month, the Minnesota supreme court also ruled that Trump could stay on the state’s ballot, concluding, “There is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot, or sending delegates to the national convention supporting, a candidate who is ineligible to hold office.”
And, when this argument arose earlier this year, Brad Raffensperger, Georgia’s secretary of state, took to the op-ed page of the Wall Street Journal to argue that he didn’t have the authority to disqualify Trump from the ballot — and other secretaries of state should tread carefully as well. Recall that Raffensperger’s family received death threats because of the outcome of the 2020 election. He’s as far from a Trump fan, supporter, or crony as you can get. But how he feels personally about Donald Trump doesn’t matter in this situation. In his duties, he’s obligated to follow the law, the Georgia state constitution, and the U.S. Constitution.
The U.S. Supreme Court is likely to saw that limb off, with those four justices still clinging to it. I appeared on Hugh Hewitt’s program this morning, and Hugh is convinced this decision by the Colorado supreme court will be overturned at the Supreme Court by a 9–0 decision, that this is the legal equivalent of a no-brainer, and that even Justice Sonia Sotomayor will find it indefensible. I’m not as confident as Hugh, but he’s a lawyer, and I’m not.
Our Dan McLaughlin is also a lawyer, and his reaction last night was that Trump has a whole slew of arguments and defenses to bring to the Supremes:
That doesn’t mean the Court will end up deciding whether Trump engaged in insurrection. Trump has a number of federal-law defenses: that Section 3 isn’t self-executing without implementing legislation or a criminal conviction, that it doesn’t cover the president, that the First Amendment protects Trump’s speech and wasn’t implicitly repealed in that regard by the 14th Amendment, that the Republican Party has a First Amendment right of association to put an ineligible candidate on its primary ballot, and even that Trump may have a legal defense because the Senate didn’t convict him on effectively the same charge. I remain skeptical of these defenses, some more than others, but several of them have their scholarly supporters. But the Court will have to wade through the whole mess unless Trump decides for strategic reasons that he doesn’t want to challenge the ruling.
One of the frustrating aspects of the forthcoming public argument about this is that it is going to turn into another “What do you think of Trump?” debate instead of “What is the law, and does it apply to this situation or not?” One of the most glaring problems here is that the four justices of the Colorado supreme court have declared Trump guilty of a serious crime that no court has convicted him of yet. Heck, no court has even indicted Trump on the charge of insurrection yet, and as you’ve probably noticed, there hasn’t been a lack of indictments against Trump this year.
As our Andy McCarthy observed in September, “The Department of Justice has been investigating Donald Trump and the January 6, 2021, Capitol riot for nearly three years, yet no insurrection charges have ever been brought against Trump or anyone else.” This is not because prosecutors forgot. It is because, at minimum, prosecutors don’t think they can convince a jury of this — and as you can see, prosecutors feel pretty good about their chances of convincing juries that Trump committed a whole host of crimes.
If you’re going to keep a man off the ballot because he committed a crime, you had better have a conviction. The Colorado supreme court doesn’t have that.
Our Charlie Cooke observes the distinction:
I oppose what Colorado’s Supreme Court did because, while I’d very much like to see Donald Trump go away, I think that it got the law wrong. Others I respect disagree. Irrespective of who is right, this is the only question that matters in this case — and, as it moves ineluctably to the Supreme Court, it is the only question that ought to be debated abroad the land.
As I wrote when this idea was first discussed:
A lot of people cannot comprehend this conclusion; there is a belief that if you oppose Trump, then you must oppose him in every way possible, and that any tool at hand should be used and that any option, no matter how legally or constitutionally dubious, must be utilized in the name of preserving the Constitution and the rule of law. (These are often the same people who contend that Trump is a threat to democracy because of his disregard for historical norms.)
And the Washington Post’s Aaron Blake observes, “Republicans were also much quicker to attack the decision than Democrats were to hail it, suggesting there is unease on the left with this method of defeating Trump.” Somewhere, far back in the minds of some Democrats, they’re realizing that if this precedent stands, red-state supreme courts could conceivably start stretching the law to find reasons to kick a Democratic nominee off the ballot. And then our democracy and system of free elections is really in trouble.
Back when Supreme Court Chief Justice John Roberts was in his confirmation hearing, he offered a perfect, succinct summation of what we, the American people, expect judges and justices to do:
“Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire. . . .”
Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”
We don’t want judges to fix the flaws they perceive in society, or to be a crusader, or to see themselves in a role where they have to save us from ourselves. We just want them to call balls and strikes and enforce a consistent strike zone. It is exceptionally difficult to believe that those four Colorado supreme court justices made this decision just based upon the law, and with no regard or recognition of the political consequences.
*Getting on the ballot in Colorado is relatively easy; 21 candidates qualified for the ballot in 2020, including Kanye West and Phil Collins — no, not that Phil Collins; the Phil Collins of the Prohibition Party. (I hear their Election Night parties never get all that wild.)
The 2024 Colorado ballot is also likely to feature the Green Party candidate. Cornel West appears to be generating the most buzz this year, although past nominee Jill Stein is running again. The Libertarian Party is also likely to appear on the ballot.
The ability of independent candidates to get on the ballot depends upon their ability to get “at least 5,000 signatures from eligible electors who have not signed a petition for any other candidate for the same office” and to have those petition signatures verified by the Secretary of State 117 days before the general election, or August 10, 2024.
ADDENDUM: The Editors podcast is always good, but if you want to hear Noah, Charlie, and me getting a little goofier than usual, this week’s edition is worth a listen.