The Colorado Supreme Court is right

Don't like it? Don't pick a criminal as your presidential candidate

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I’m sure you’ve read by now that the Colorado Supreme Court has ruled that Donald Trump cannot run for president because he previously engaged in an insurrection against the United States. In practical terms, this means that the court has excluded Trump from the GOP primary ballot in the state and said that any votes for him, including write-ins, should not be counted. The ruling is under the 14th Amendment, a post-Civil War addition to the constitution which was designed to keep former Confederates from assuming office again. The whole matter will now go to the U.S. Supreme Court, and until it does, the ruling doesn’t actually go into effect. There’s a good chance the Supreme Court will nullify it or place a stay on it for so long that it will all turn out to be moot.

As a legal matter, it looks like Trump has a few possible defenses. The first is to argue that he didn’t engage in insurrection under the meaning of the 14th amendment. For some reason or other (guess what it is), most conservative lawyers aren’t that keen on making this argument, instead preferring to rest their case on technical points about the precise meaning of the amendment or its conflict with other amendments. Here is a sampling of these from conservative writer Dan McLaughlin:

Trump has a number of federal-law defenses: that Section 3 isn’t self-executing without implementing legislation or a criminal conviction, that it doesn’t cover the president, that the First Amendment protects Trump’s speech and wasn’t implicitly repealed in that regard by the 14th Amendment, that the Republican Party has a First Amendment right of association to put an ineligible candidate on its primary ballot, and even that Trump may have a legal defense because the Senate didn’t convict him on effectively the same charge.

Out of these options, the one that is getting the most traction in the conservative legal world is the idea that the 14th amendment doesn’t actually apply to the presidency. They argue that because the amendment does specifically mention several offices - representatives, senators, and presidential electors - it was only supposed to apply to those offices. This seems quite absurd, because it was made clear time and again during the congressional debate over ratification that it did apply to the president. These other offices were just listed because there was some doubt at the time about whether they constituted “federal offices” as opposed to state ones.

Regardless, the smart money has to be on the Supreme Court finding some way to wiggle out of this - the court has a 6-3 conservative majority and is unlikely to want to weather the backlash from the right by tossing Trump off the ballot. There’ll be a backlash from the left for leaving him on, of course, but the conservative justices are less socially and intellectually responsive to this, and they likely don’t fear the left as much as the right, which has shown no compunction about shredding norms and institutions that it finds distasteful in recent years.

The very fact that the case is being brought at all is already causing a ferocious backlash on the right. Conservatives and anti-anti-Trumpers are portraying it as another deep state plot to keep Trump off the ballot. One of their favorite arguments is that it is somehow undemocratic for the courts to consider cases concerning a presidential candidate because his fate ought to be decided by the people at the ballot box. They present the fact that Trump is currently the subject of numerous criminal and civil proceedings as an outrageous affront to the people’s right to choose.

This is, of course, complete nonsense. If Republicans don’t want their presidential candidate to be the subject of numerous criminal trials, then they should pick someone other than a criminal as their presidential candidate. If Donald Trump had just wandered randomly in off the street with no prior evidence of wrongdoing, their argument might carry some weight. But this is a man who has demonstrably broken numerous laws, including inciting an insurrection against the United States which unfolded in front of everyone’s eyes live on television. The truly undemocratic thing to do would be to let him just get away with it rather than insisting on equality before the law, without fear or favor.

Even though the Colorado case is likely doomed when it comes before the Supreme Court, bringing it is the right thing to do. Under the plain text of the 14th amendment, Trump clearly is disqualified from running for president. For a court to rule this is an extraordinary act, but these are extraordinary times. The Republican Party has been captured by a wannabe dictator, leaving the legal system as one of the nation’s last lines of defense against a dedicated enemy of American democracy seizing control of the government. The people who are lined up on the side of the dictator rather than the democracy will have to deal with the consequences that they brought upon themselves.