Dec.20

electoral-vote.com

Dem 51

   

GOP 49

Trump Booted Off of Colorado Ballot

The Supreme Court of Colorado has finished reviewing a lower court's ruling, and has ruled 4-3 that Donald Trump is ineligible to appear on the Colorado ballot in 2024.

Trump is not going to win in Colorado in 2024. Or, if he does, it will mean a wave so red that Colorado's EVs don't matter. So, the main significance of yesterday's ruling is that it effectively forces the U.S. Supreme Court to take up the question. Had every state struck down challenges to Trump's eligibility, SCOTUS might have remained above the fray. Clearly, they really don't want to get involved here. But now, there's a serious constitutional question on which states have disagreed (Minnesota, recall, has already ruled that Trump could stay on the primary ballot). Recognizing full well that an appeal is coming, the Colorado supremes stayed their decision pending that appeal.

Assuming that SCOTUS takes the case—and, again, how can they avoid doing so?—they have three basic options:

1. Broadly Overturn the Decision: If you had to bet, this is probably the outcome you should bet on, since the Court is 6-3 conservative, and since allowing the Fourteenth Amendment to be applied like this opens many cans of worms. To make this work, the Court would have to come up with a compelling reasoning for why the Fourteenth doesn't apply to Trump. Basically, they would have to argue that: (1) it wasn't an insurrection, or (2) it was an insurrection but Trump didn't support it, or (3) it was an insurrection and Trump did support it, but that's not disqualifying for him. Option #3 is probably the most viable; the Colorado decision that was just overturned was based on the judge's observation that the Fourteenth Amendment says this:

   No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

   Note that while presidential electors are mentioned, presidents are not. That said, the presidency is clearly a civil office, and Trump clearly took an oath to defend the Constitution of the United States, so you have to squint very hard to argue that his current run for office is not covered by the Fourteenth Amendment. But again, one (Democratic-appointed) judge already did so, so...
   
   It is also worth pointing out that if SCOTUS does rule that it wasn't an insurrection (#1) or that it was an insurrection but Trump didn't support it (#2), that would effectively gut Jack Smith's Washington D.C. case.
   
   There might be one way out for SCOTUS if the justices want to get rid of the Colorado decision without upending Jack Smith's case. They could declare that the president is in a special category because the Constitution specifically describes the president and the powers the president has. Therefore, he is not an officer, like, say, the secretary of the treasury. This would be slightly tricky because the oath Trump took reads:

   I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

   This strongly suggests that the president will occupy an Office as soon as he finishes this little speech. Normally, one thinks of a person who occupies an office as an "officer." However, if the Court wants to weasel out, it could rule that millions of people go to an "office" every day and are not "officers." In this interpretation, the "Office of President of the United States" is a room at 1600 Pennsylvania Ave., NW, D.C., not the job of being president. It's iffy, but if you are grasping at straws, you can't be picky about which straw you grasp.
   
   
2. Broadly Affirm the Decision: Alternatively, SCOTUS could affirm the Colorado decision. That would have a... profound effect, as Trump would then be tossed off the ballot everywhere, or nearly everywhere. After all, if SCOTUS has affirmed that he is subject to the terms of the Fourteenth Amendment, then the ACLU or some other group will file lawsuits in every state arguing he's ineligible. And what can lower-level judges say, other than "I guess you're right." Even if a few rogue judges try to strike out on their own, he'd still be off the ballot in so many states that 270 EVs would be impossible.
   
   We presume SCOTUS does not want to get involved in deciding yet another election, particularly in a way that would hurt the Republican Party. So, we find this particular outcome to be unlikely. That said, if SCOTUS does uphold Colorado, then the Supremes damn well better provide a clear definition for what constitutes "insurrection." Otherwise, you're going to see a million lawsuits every election cycle, from here on out, and from Democrats and Republicans, spinning all sorts of different words and actions into "insurrection."
   
   
3. Rule Narrowly, for Colorado Only: Every state has its own unique rules for elections, and Colorado is no different. So, SCOTUS could affirm or reject the decision, but only as it applies to Colorado. For example, the Centennial State has a mechanism built into the state election code that allows for citizens to challenge the validity of candidates. This mechanism is not unique, but it's not common. So, SCOTUS could find that this part of Colorado election law is not legal, and thus the suit against Trump was invalid. Or, SCOTUS could find that Colorado acted lawfully, but only because they have the provision allowing candidate challenges. Either way, the decision would only be relevant to Colorado, or to a small handful of states.
   
   This outcome seems more likely than the Court broadly affirming the Colorado decision. That said, it would probably end up kicking the can down the road. Now that one state has disqualified Trump, surely another will follow suit.

In short, it's a big mess, and reasonable minds can disagree about what the correct approach is. Indeed, while we are used to seeing a 4-3 vote from a court, and thinking that the vote split along party lines, the fact is that all seven Colorado justices are Democratic appointees.

Needless to say, politicians often struggle to acknowledge that both sides might have some merit. That is particularly true of today's Republican politicians. And so, Trump's enablers in the GOP spent yesterday pitching a fit. Speaker Mike Johnson (R-LA) called it "nothing but a thinly veiled partisan attack" and a "reckless decision." Sen. Thom Tillis (R-NC) promptly introduced legislation that would withhold federal election funding from "states that abuse the Fourteenth Amendment." Rep. Elise Stefanik (R-NY) said the ruling was the work of "four partisan Democrat operatives" (ignoring the fact that the other three votes also came from Democrats), while predicting that the ruling "will backfire and further strengthen President Trump's winning campaign."

Whether this will actually help Trump is an interesting question, though we think Stefanik's prediction is likely incorrect. Everyone who is inclined to see Trump as a victim is already on board the S.S. MAGA, and while the decision will fuel their anger, they still only get one vote each. Further, if SCOTUS sweeps the Colorado decision aside, then it will largely be forgotten after the dozens of "outrages" that will surely come down the pike in 2024. Meanwhile, if Colorado is upheld, it could plausibly de-fang, or even end, Trump's campaign.

In short, we just can't see a way yesterday's ruling ends up as a win for Trump, while we can certainly see a way it ends up as a big loss. At the moment, though the biggest loser is Chief Justice John Roberts, who really, really wants to avoid this hot, hot potato. Well, OK, it's Colorado and not Idaho. So, this hot, hot proso millet. (Z)