Colorado Supreme Court Rules Trump Ineligible for President Under 14th Amendment

Dave Pell, writing at NextDraft:

Donald Trump has been kicked out of the mile high club. In a 4-3 decision, the Colorado Supreme Court has ruled that Trump is ineligible to be on the ballot in the state under Section 3 of the 14th Amendment. “The decision from a court whose justices were all appointed by Democratic governors marks the first time in history that Section 3 of the 14th Amendment has been used to disqualify a presidential candidate.” For now, the decision is stayed, giving the Supreme Court time to weigh in on the matter. [...]

Why 14th Amendment bars Trump from office: A constitutional law scholar explains principle behind Colorado Supreme Court ruling. In Slate, Lawrence Lessig explains why the 14 Amendment actually doesn’t do that at all: “The Supreme Court Must Unanimously Strike Down Trump’s Ballot Removal”. Once you’re done reading the analysis, you might want to shift your focus to the 21st Amendment, because you’re gonna need a drink.

I dislike the AP’s emphasis on the fact that the justices on Colorado’s supreme court were all nominated by Democratic governors — it emphasizes partisanship in the branch of government that ought to be least partisan. (After serving an initial term, Colorado supreme court justices must stand for statewide election; the four of them who have served that long have been retained by voters overwhelmingly.) The AP does not use such language when describing the decisions of the United States Supreme Court, of which 6 of 9 justices were nominated by Republican presidents — and who never stand for retention by voters. (This, despite the fact that voters have, in the aggregate popular vote, overwhelmingly favored Democratic candidates for president over the last 30 years. The only Republican candidates to win the popular vote after Reagan were George H.W. Bush in 1988 (7.7% margin) and George W. Bush in 2004 (2.5%).)

The argument that the 14th Amendment bars Trump from running again for federal office — and that it’s self-executing — was first put forth in a paper by two law professors, William Baude and Michael Stokes Paulsen, who are members of the very conservative Federalist Society. It’s not some crackpot left-wing plot.

To Pell’s list of reading material, I’ll add George Conway, also writing at The Atlantic:

But last night changed my mind. Not because of anything the Colorado Supreme Court majority said. The three dissents were what convinced me the majority was right.

The dissents were gobsmacking — for their weakness. They did not want for legal craftsmanship, but they did lack any semblance of a convincing argument.

I find Lessig’s argument that SCOTUS should overrule Colorado compelling, but not convincing. The only thing about this I’m certain of is that you’re a damn fool if you think it isn’t devilishly tricky. If you’re of the mind that our current SCOTUS is in the bag for Republicans, I don’t disagree — but I don’t think that means for a second they’re in the bag for Orange Jesus. They’re Republican hacks, not Trump hacks. Even his three nominees to the Court — Gorsuch, Kavanaugh, and Barrett — owe him nothing, and if anything, might want to assert their independence. My gut feeling is that SCOTUS will either rule unanimously that the 14th amendment doesn’t apply to presidential candidates, or, in a split decision (with the hackiest of hacks, Alito and Thomas at least, and maybe Gorsuch, kowtowing to Trump), they’ll pull a Caesar on Trump and keep him off the ballot.

★ Wednesday, 20 December 2023