Earlier this week, the Colorado State Supreme Court ordered Donald Trump’s name to be stricken from the Colorado GOP primary ballot. In order to give the U.S. Supreme Court an opportunity to weigh in, the Colorado Supreme Court put a stay on their decision until January 4th, as January 5th is when ballots start getting printed for their Presidential primary on March 5th.
The State Supreme Court, in their own words, stated “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.”
It is fitting that the State Supreme Court, despite the historical importance-this was the first time a presidential candidate had been disqualified under Section III of the Fourteenth Amendment-reached its decision quickly. While the law will never be completely free of politics, the law would actually be subverted to political whims by allowing Donald Trump to continue to remain on the ballot. This was, undoubtedly, the correct ruling.
Steve Vladeck, in his explainer on the Colorado decision, points out that the third question is automatic (in legal terms, self-executing) and does not require any sort of legal proceeding to determine guilt or responsibility. While that may be the constitutional proscription or remedy, in deeply polarized times, the U.S. Supreme Court has an incredibly narrow tightrope to walk that will maintain the dwindling remnants of its public confidence.
Perhaps the easiest path for the Court would be to simply affirm that the Colorado Supreme Court has the power to determine ballot eligibility within its own state but not let that ruling apply to the rest of the country. Assuming the three liberals stay united, then two of Roberts, Kavanaugh, Gorsuch, or Comey Barret will need to join in a majority decision. I suspect Roberts and Kavanaugh will be the most likely to flip, but that is by no means a confident guess.
Outside of one New Mexico County Commissioner in 2022 for his role in the January 6th Insurrection, the Disqualification Clause of the 14th Amendment was last used in 1919 against future Wisconsin Congressman Victor Berger for an indictment and conviction under the Espionage Act. In the case Louisiana ex rel. Sandlin v. Watkins (1869), it was found that Section III of the Fourteenth Amendment was not a criminal proceeding, but a qualification of office, and therefore a conviction was not needed to disqualify a candidate from campaigning or holding that office.
A common red herring argument will be that there is no due process for Trump. Because this is a question of qualification for office, not a civil or criminal question, there is no due process-remember, due process is only required to deprive someone from life, liberty, or property. Running for office is none of those three.
A second red herring will be the assertation that Donald Trump has the right to free speech. The right to free speech is not absolute, and one of the biggest exceptions to free speech protections is “imminent lawless action” as found in Brandenburg v. Ohio (1969).
If I am being honest, I fully expect a majority of the Court’s reactionaries to find a way to aid Trump to either remain on the ballot or bar any further states from taking meaningful action against him under the 14th Amendment. In keeping with that perspective, we should continue to assume that our best way to defeat Trump and Trumpism is to do so at the ballot box.
We are the help that we’ve been looking for. Democracy is a verb, my fellow citizens. 2024 is another challenge that we shall meet and overcome.