On Tuesday night, the Colorado Supreme Court ruled that Donald Trump had actively participated in an insurrection against the United States and is, therefore, ineligible to appear on the ballot in the state in 2024.
Which, well:
Trump immediately accepted the ruling said he would appeal — and the case is very likely to be fast-tracked to the Supreme Court where, not for nothing, Trump appointed 3 justices to establish the current 6-3 conservative majority.
(Sidebar: For the best case for why Trump can — and should — be removed from the ballot thanks to the 14th Amendment, read this.)
I will readily admit that the Colorado decision surprised me. I have written here that I didn’t put any particular weight behind these various cases — there are attempts to disqualify Trump using the 14th amendment in a number of states — because I just couldn’t see the courts stepping into the political arena so strongly. (More on that below.)
I’ve had a night (and an early morning) to reflect on the decision. My thoughts on what it means — and what it will do — below.
The GOP primary is (really) over. Remember those stories over the last week or so about Nikki Haley’s growing momentum — especially in New Hampshire? That’s pretty much over now. If Trump’s first indictment back in April — by Alvin Bragg in New York — began the consolidation of the Republican base behind him, this latest decision out of Colorado should cement any lingering doubts GOP voters have about him. Trump’s entire candidacy in 2024 is premised on the idea that he is a victim of the, er, Deep State run amok. That he is being targeted because a) he can win and b) he represents a deadly serious threat to the political establishment. What better way to prove exactly that point than to have him thrown off of the ballot in a state because of an obscure clause of the 14th Amendment? Heck, even his Republican primary opponents — including Chris Christie(!) — were unanimous in decrying the ruling as evidence of an out-of-control judiciary. Trump could not have ordered up something better for his hopes of rolling to the Republican nomination than this ruling at this time. If you have ANY doubt about that, consider this: Trump was sending out fundraising appeals based off of the Colorado ruling within hours of it being issued.
It’s not really about Colorado. Let’s say — and I think this is a longshot — that the Supreme Court upholds the Colorado ruling. The immediate impact — in Colorado — to Trump is minimal. He lost the state by 13 points to Joe Biden in 2020 and it’s on no one’s list of swing states heading into 2024. The real danger for Trump in this scenario would be the precedent. As I mentioned above, there are a number of states — 13 to be exact — who have similar lawsuits pending. (Those states are Wyoming, West Virginia, South Carolina, Alaska, Texas, Wisconsin, Nevada, Virginia, New Mexico, New Jersey, Oregon, New York and Vermont.) Obviously if even a few of these states disqualified Trump from the ballot, it would be a MASSIVE deal — and likely doom his chances of winning the presidency.
The Supreme Court is still a 6-3 conservative majority. Let me first say this: I am not a lawyer. (Sorry Mom!) Which means that you should take my predictions about legal outcomes cum grano salis. (Again, I am surprised any court ruled that Trump could/should be disqualified.) But, but but. Conservatives — including three Trump himself appointed — dominate this Court. And Chief Justice John Roberts, who Trump didn’t appoint, has said over and over again that he is concerned that the Court is perceived as yet another player in today’s pitched partisan political battles. Given those two facts, do you really think — no matter what your political proclivities are — that this Court is going to say it is fine to remove the leading Republican presidential candidate (and a former president of the United States) from the ballot in a state based on an admittedly controversial reading of a provision of the 14th Amendment? I just do not see it. Former Trump White House lawyer Ty Cobb, who has turned against the former president in a very public way since leaving the administration, predicted a unanimous decision — for Trump — in the case. “I think this case will be handled quickly, I think it could be 9-0 in the Supreme Court for Trump,” Cobb said on CNN shortly after the Colorado ruling. “I do believe it could be 9-0 because I think the law is clear.” I tend to agree. I just don’t see how the Court will put a thumb on the scale for Biden — and, to be clear, that is what a judgement upholding the Colorado ruling would mean — on the verge of an election year.
This Colorado ruling could be a recipe for (political) disaster. My friend Damon Linker, who writes the great “Notes from the Middleground” Substack, tweeted this last night: “The lawyers are going to get us all killed.” Which was my first thought too — even as liberals threw a party for the ruling online. (This case — and Tuesday’s decision — is the stuff of liberal fan fiction.) Consider, for a moment, what next fall would look like if Trump is indeed disqualified in Colorado. (Let’s say it’s just Colorado — although per point #2 above, I think that would be unlikely.) And Trump winds up losing the election to Joe Biden. How do you think that would look for the country? Not good! I mean, Trump helped incite an insurrection when he lost fair and square — at the ballot box! — last time around. A defeat that could be laid at the feet of a so-called “biased” judiciary? Look out. I genuinely think we could see riots and violence in the streets. That might be a worst case scenario but it’s not that hard for me to imagine. To truly be rid of Trump — and honestly this might not even work — I think you HAVE to beat him at the ballot box. Again.
This all likely won’t matter. I know I am going from riots in the streets to “nothing to see here.” But stick with me. I think by far the most likely scenario is that Trump wins on appeal to the Supreme Court. Which sets a precedent on all the other attempts to disqualify him from the ballot next year. Which means that Donald Trump’s name appears on the ballot in all 50 states in 2024. And that we view this Colorado case as an interesting moment in the campaign but one that ultimately didn’t really matter. Could I see a scenario where this Colorado ruling reminds swing voters that Trump, well, fomented an insurrection because he couldn’t accept that he lost an election? Sure! But I could also see how this ruling supercharges the Republican base by convincing them — once and for all — that the Deep State really does have it out for Donald Trump. Politics is, of course, an unpredictable game. (It’s why we love it so much!) But my general sense — assuming the Supreme Court rules in Trump’s favor — is that this is a molehill rather than a mountain in the campaign.
I don't think this is going anywhere, but part of me is enjoying the hypocrisy of those who support the radical right opinions of the Supreme Court overturning Roe and affirmative action and gutting the Voting Rights Act are now whining about "unelected judges" making decisions.
Breaking news . . . .
In response to the decision by the Colorado Supreme Court, Vivek Ramaswamy announced that he would not let his name be listed on the Colorado ballot if Trump wasn't listed also. When polled for their reactions to this announcement, half of the respondents replied "who cares?", while the other half replied "who's Vivek Ramaswamy?".