Some of you may have noticed the hullabaloo that ensued when the Supreme Court of Colorado decided the other day that Donald Trump was not qualified to be on the ballot in Colorado because he had engaged in insurrection in violation of the 14th Amendment.  See Anderson v. Griswold, 2023 CO 63.

Well, this one has been coming for a while, but it’s also clearly not the final word on the issue.

https://www.threads.net/@jojo.fromjerz/post/C1GCFR8xvuA/?igshid=NTc4MTIwNjQ2YQ%3D%3D

Just as a reminder, this case involves Section 3 of the 14th Amendment. The 14th Amendment was enacted shortly after the end of the Civil War — along with the 13th Amendment, which prohibited slavery and the 15th Amendment, which gave former slaves the right to vote — and is primarily known for applying the first ten amendments (the “Bill of Rights”) to the States and for granting certain “citizenship” rights. Section 3 was added to address a very specific need, and that was the need to keep former confederate officials from being re-elected to office in a post-reconstruction world. To accomplish that, section 3 reads:

As with many things in the Constitution, the drafters were not specific about the mechanics of how this is supposed to take place. So:

• Who gets to determine whether someone “engaged” in insurrection?
• Does a person need to have been convicted of insurrection?
• What exactly encompasses having given “aid or comfort” to someone involved in a rebellion.

Back when the amendment was enacted, these did not seem like difficult questions, because it was clear who had previously held office, and who had skipped over to the side of the Confederacy. It didn’t require a lot of litigation to make those determinations.

But it’s more complicated now. 

A number of legal scholars and constitutional experts have been arguing for a while that the 14th Amendment should keep Trump off the ballot. A few of the states have taken them up on the suggestion to test the constitutionality of Trump’s candidacy. That is to say, not necessarily the states themselves, but electors in some of those states. For example, the Colorado lawsuit was brought by Citizens for Responsibility and Ethics in Washington (“CREW”), a watchdog group out of the District of Columbia.

Litigation is currently pending in 13 states, with the litigation in various stages of progress. Some court dismissals have been appealed. In Maine, where state law requires the Secretary of State to preside over ballot challenges, a court decision on Trump’s eligibility is expected in the next couple of weeks.

The group Free Speech For People, a left-leaning election reform advocacy group, brought suit in Minnesota, Oregon and Michigan. In Minnesota, the state court there said political parties have the right to put ineligible candidates on their primary ballots; however, Trump might still be found to be ineligible for the general election ballot. The suits in Oregon and Michigan are still pending.

John Anthony Castro, a longshot Republican presidential candidate, in more than two dozen states. In October, the Supreme Court declined to hear Castro’s case, after which judges in three states dismissed his lawsuits. Castro voluntarily withdrew his cases in several others.

The results have been mixed. Some of the state courts ruled that Trump cannot be kept off a primary ballot — mostly because political parties have a great deal of discretion with respect to whom they want to run — and some have deferred, saying it’s a political question that the courts should not decide. 

In Colorado, the lower court that first heard the case, initially decided that they were not sure that the oath that Trump took was covered by the 14th Amendment, which generally applies to the oath that legislators need to take. But even that court agreed that Trump had “engaged” in an insurrection.

Colorado’s Supreme Court decided that the small variance in oaths was a distinction without a difference. Trump swore to uphold the Constitution and then tried to overturn the election. That violates the 14th Amendment.

https://www.threads.net/@rbreich/post/C1FRyltLjY0/?igshid=NTc4MTIwNjQ2YQ==

So what happens now?

The case almost certainly goes to the Supreme Court, where it’s bound to be fast-tracked.

Will the Supreme Court overturn the decision in Colorado? Honestly, nobody knows. No remotely similar case has ever gone up there.

At first blush one would think the case would likely be overturned. Three of the members were appointed by Trump, and conservatives hold a 6:3 majority.

But there are reasons to think that it’s possible that the court does not overturn the Colorado case.

1. John Roberts is an institutionalist, and he’s very aware of the low reputation of the court. The court’s esteem took a very serious hit when they decided Bush v. Gore in 2000, and here there would be an opportunity to make amends.
2. The court itself might want to be rid of Trump. By now, Trump has become such a dead weight for the party, and his overt racism and quasi-fascist tendencies may be something the court itself would like to put to bed.
3. If they do overturn the Colorado decision, they will be opening the doors to all kinds of bad behavior by (at least) Presidents of the United States, and maybe others. Checks and balances be damned.

Far-fetched as it may seem, what if Joe Biden decides not to vacate the office in the case of a Trump victory, fearing a descent into fascism? More likely, what if some future President of either party decides that nothing — not impeachment, not attempted insurrection — can contain them?

The Supreme Court may be very hesitant to establish the kind of precedent that may lead the country away from democracy.