I’m Not Getting Too Worked Up Over The Decision To Boot Trump Off The Ballot— You Shouldn’t Either

Michigan & Minnesota Threw Out The Argument That Colorado Adopted

Everyone who has studied American history knows that Lincoln won the election of 1860 and that the following month South Carolina seceded. On February 1, Texas seceded. Less known is that, like South Carolina, Texas had refused to put Lincoln’s name on the ballot. Yep, Abe Lincoln got zero votes in Texas. (South Carolina, the most backward state then as it is now, hadn’t yet adopted the popular vote. Most of the other slave states also refused to put Lincoln on the ballot). Back then, each state had autonomy in determining who appeared on their ballots. Texas enacted legislation excluding candidates deemed “unqualified” or promoting views “injurious” to the state. Lincoln's anti-slavery stance easily fell under this definition. 

You may have heard by now that Texas’ criminal/neo-Nazi Lt Governor, Dan Paxton was on Fox News with Laura Ingraham Tuesday evening threatening to take Biden off the ballot next year, purportedly in response to Biden’s border policies, but actually because of the decision by Colorado’s Supreme Court to use the 14th Amendment’s insurrection clause to keep Trump off the ballot there. Patrick: “Seeing what happened in Colorado makes me think— except we believe in democracy in Texas— maybe we should take Joe Biden off the ballot in Texas for allowing eight million people to cross the border since he’s been president disrupting our state.”

The 4-3 ruling in Colorado had all of my friends celebrating. There’s no reason to. For one thing, the heavily Republican U.S. Supreme Court will settle this matter in the same partisan way it settles all matters— meaning it will strike down the Colorado decision. Meanwhile, Sen. Thom Tillis (R-NC) is introducing legislation that would— with a straight face— remove an semblance of state’s rights in the matter and giving jurisdiction in the matter of who appears on ballots to the federal judiciary only. And, yes, North Carolina was another state that refused to put Lincoln on the ballot in 1860. Tillis’ press released: “Regardless of whether you support or oppose former President Donald Trump, it is outrageous to see left-wing activists make a mockery of our political system by scheming with partisan state officials and pressuring judges to remove him from the ballot.”

"No Sense Of Decency" by Nancy Ohanian

The US Supreme Court needs to decide by Jan 5, the date Colorado prints its GOP primary ballots. As former deputy assistant attorney general Harry Littman put it, the politics of the decision “could not be more seismic. It stands to upend the 2024 election by providing a deus ex machina solution to the problem of Trump’s attempt to return to the presidency while under multiple criminal indictments— two of them for attempting to overturn the results of the last election.”

[T]he U.S. Supreme Court could seize on the legal definition of “insurrection.” The trial court used a fairly capacious definition of insurrection that satisfied the state’s highest court. The Colorado Supreme Court in turn noted that although it would be hard to provide an all-encompassing definition, insurrection does include “a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power.” Finding that definition errant would be enough to reverse the Colorado decision.

Finally, the Supreme Court could hold that the Colorado justices shouldn’t have taken up this question in the first place. The rationale would be that Section 3 is qualitatively different from other constitutional qualifications and isn’t susceptible to court resolution.

Colorado’s chief justice, Brian D. Boatright, advanced that reasoning in his dissent, arguing that disqualification on 14th Amendment grounds has to take place somewhere other than a court. “Unlike qualifications such as age and place of birth,” he wrote, “an application of Section Three requires courts to define complex terms, determine legislative intent from over 150 years ago, and make factual findings foreign to our election code.”

Some version of this argument has prevailed in Minnesota and Michigan, where courts have dismissed similar efforts to disqualify Trump. And this U.S. Supreme Court seems particularly likely to issue a ruling along these lines. Consider, for example, its parallel though dubious conclusion that most gerrymandering is beyond its capacity to adjudicate.

But it wouldn’t be quite so simple as finding that the 14th Amendment question is similarly “non-justiciable” under federal constitutional law. That would still leave room for Colorado’s highest court to decide that it has the power to adjudicate Trump’s qualifications based on the state’s constitution and laws.

The nation’s highest court would have to find something in the language of Section 3 that precludes adjudication by a state court. For example, it might hold that the text, structure and history of the section indicate that only Congress can make the essentially political judgment to execute the provision.

In sum, we are in for a wild and woolly constitutional ride over the next 16 days and perhaps beyond, and it’s difficult to know where or how it will end. The two most prominent proponents of the theory that Section 3 of the 14th Amendment is “self-executing,” Laurence Tribe and J. Michael Luttig, have been vindicated by the Colorado decision, but they have also said that once the case arrives at the U.S. Supreme Court, all bets are off.

Indeed they are— except for one. We can safely wager that the court’s opinion will be a landmark in constitutional law and for the country’s future.

There’s no doubt that this decision is energizing— to put it mildly— Trump supporters and even other Republicans. “Almost immediately after the Colorado Supreme Court issued its decision,” reported Amy Wang, “Trump’s rivals in the GOP presidential primary weighed in, with most criticizing the ruling. The most fervent defense of Trump came from entrepreneur Vivek Ramaswamy, who claimed in a nearly 400-word statement that the Colorado decision was ‘what an actual attack on democracy looks like.’ … [He] vowed to withdraw from the Colorado GOP primary unless Trump was also allowed to appear on the ballot. He demanded that DeSantis, Christie and Haley ‘do the same immediately— or else they are tacitly endorsing this illegal maneuver which will have disastrous consequences for our country.’”

Nikki Haley “told reporters in Iowa on Tuesday that Trump should be defeated at the polls, not in the courts. ‘I will tell you that I don’t think Donald Trump needs to be president. I think I need to be president. I think that’s good for the country,’ Haley said. ‘But I will beat him fair and square. We don’t need to have judges making these decisions, we need voters to make these decisions.’ Chris Christie: ‘I do not believe Donald Trump should be prevented from being president of the United States by any court. On the principle, I don’t believe a court should exclude somebody from running for president without there being a trial and evidence that’s accepted by a jury that they did participate in insurrection… I think it would cause a lot of anger in this country if people had the choice taken away from them. I would rather have them make the choice that he doesn’t deserve it.’ The only Republican presidential candidate to agree with the Colorado Supreme Court ruling was former Arkansas governor Asa Hutchinson.”

Needless to say Trump reacted with fury. Here are a few of his tweets from his fake Twitter platform:

• “Tonight, America is seeing the ultimate—in ELECTION INTERFERENCE.”

• “IT IS NOT GOOD FOR OUR COUNTRY, AT ALL…”

• “They don’t want the voters to decide this…there is obviously this deep fear of Donald Trump potentially winning the White House back…”

• Gregg Jarrett: “This is ELECTION RIGGING…This is an effort, make no mistake, to deprive American voters of their right to make the decision as to who should be president. It is anti-democratic. It’s the equivalent of rigging the ballot box.”

• Charlie Hurt: “Democrats in Colorado are so afraid of allowing American voters to vote and pick the next president they are willing to do extra-judicial things,  in order to thwart the people’s choice from being on the ballot. To them, preserving democracy requires destroying democracy.”

• ELECTION INTERFERENCE!

• Jonathan Turley: “This country is a powder keg and this court is just throwing matches at it…for people that say they are trying to protect democracy, this is hands down the most anti-democratic opinion I’ve seen in my lifetime.”

• WHAT A SHAME FOR OUR COUNTRY!!!

• A SAD DAY IN AMERICA!!!

And, he immediately realized he could fleece the flock some more, as you can see here:

Mike Allen reported that “anti-Trump Republicans fear the ruling could look like the establishment trying to thwart Trump, who can play the victim… There's already a budding campaign to pressure Justice Clarence Thomas to recuse himself from any ruling because of his wife's connections to the Trump White House before Jan. 6. Ginni Thomas was involved with Trump's attempt to overturn the results of 2020 election.”