On Tuesday evening, the Supreme Court of Colorado ruled that former President Donald J. Trump had to be removed from the state ballot, for both the primaries and the general election. They cited Amendment 14, Section 3 of the Constitution of the United States, which states, in relevant part, that candidates are ineligible for office if they “shall have engaged in insurrection or rebellion” against the Constitution of the United States. It is unclear whether the provision applies to presidential candidates; it is even more unclear whether such a provision is “self-enforcing,” meaning that any electoral official in any state can simply declare for himself whether a candidate has been an “insurrectionist.”
Nonetheless, the court said it is qualified to determine who is guilty of “insurrection” under the 14th Amendment without any criminal case or impeachment case. And the court says that “the events of January 6 constituted an insurrection and… President Trump engaged in that insurrection.”
On a legal level, this is extraordinarily strained. Section 3 was designed to prohibit those who had served in the Confederacy from holding public office in the United States. The Confederacy, as we know, was an armed rebellion against the United States that ended in the deaths of some 600,000 Americans on both sides. Trump, by contrast, made a series of legal challenges to the election, all of which were denied, and then claimed — on the basis of specious legal reasoning — that the vice president could simply throw out electoral slates that had already been certified. He then called for his supporters to protest at the Capitol building and a riot broke out. This hardly qualifies as an “insurrection,” let alone proving that Trump engaged in one. Trump, let us not forget, has not been charged with insurrection. He was not even convicted in his impeachment trial over Jan. 6.
Yet the Colorado State Supreme Court says it can bar him from electoral eligibility anyway.
This is, to put it mildly, unbelievably dangerous.
It sets up a perverse set of incentives for both political sides.
Trump can and will rightly claim that lawfare has been used to thwart the workings of democracy — that a slate of judges in any state can simply negate the will of the voters, and that President Joe Biden’s own Department of Justice has been attempting to drag him into court before the election in order to stymie his shot at the presidency.
Meanwhile, the Colorado Supreme Court has now set up expectations for Democrats across the country that Trump can be legally barred from the presidency — and when the Supreme Court overturns that Colorado Supreme Court ruling, they will claim that the Supreme Court itself is rigged.
All of which means that 2024 is going to be the most insane and ugly presidential election in American history. And that’s saying a lot, since 1968 and 2020 are both years that existed. Under what circumstances, precisely, would Democrats accept the result of a Trump election? Under what circumstances, precisely, would Republicans accept the result of a Biden election?
The weaponization of the legal system creates an all-consuming fire, burning everything in its path. There is simply no 2024 result likely to result in anything but complete – and perhaps violent — chaos at this point.
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