Does Colorado's decision to ban Trump from the GOP ballot threaten his candidacy?

The Colorado Supreme Court ruled Tuesday that former President Donald Trump “is disqualified from holding the office of president under Section 3 of the 14th Amendment” and shouldn’t appear on the ballot in next year’s Colorado Republican presidential primary. The 4-3 decision by Colorado’s top court was the first time the 1868 amendment’s insurrection clause had been used to disqualify a presidential candidate.

“We do not reach these conclusions lightly,” the court’s majority wrote. But “we are mindful” of “our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

A Colorado district judge found, and the state Supreme Court’s majority agreed, that Trump “engaged in insurrection” on and leading up to the Jan. 6, 2021, attack on the Capitol while Congress was certifying President Joe Biden’s victory over Trump. Trump’s campaign vowed to appeal the “completely flawed” decision to the U.S. Supreme Court.

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There are similar challenges to Trump appearing on the ballot in several states, spurred by a law review article released in August in which two prominent conservative law professors argued that the 14th Amendment’s “self-executing” Section 3 renders Trump ineligible for the presidency and states should remove him from the ballot. Two of the nation’s most famous constitutional scholars, federal appellate Judge J. Michael Luttig and Harvard law professor Laurence Tribe, endorsed that conclusion.

Does the Colorado Supreme Court’s ruling really threaten Trump’s candidacy?

“Naturally, Democrats and Trump foes reveled in the Colorado court’s decision,” but it’s actually “an early Christmas present” for Trump, Mark Z. Barabak argued at the Los Angeles Times. This “perceived assault on Trump — by Democratic-appointed Colorado justices, no less — only makes the insurrectionist ex-president more sympathetic to the GOP base” and harder to attack by his GOP rivals, “not that they’ve been all that willing up to now.”

“If the decision stands, the principal beneficiaries will be Trump’s Republican rivals,” not Biden, David Frum agreed at The Atlantic. After all, the ruling is for the GOP primary, and with Trump off the ballot, one of the other Republicans “will win Colorado’s delegates.” If the U.S. Supreme Court upholds the Colorado ruling, the courts “might yet save the GOP from itself” by letting “some non-insurrectionist candidate win the Republican nomination,” he added. But this is the GOP’s “last exit; if they drive past, there will not be another before the primaries finish” and they are stuck with an unelectable “ex-president who openly yearns to be a dictator.”

The Colorado decision seems likely to “make things worse, not better,” Eric Boehm wrote at Reason. Even if the U.S. Supreme Court allows the 14th Amendment to be used to disqualify Trump, booting a democracy-threatening candidate “off the ballot to save democracy seems like a weird argument” to sell to a wary electorate. The better way to dispatch with such candidates is by “defeating them in open, fair elections.” And Trump would likely be removed only in blue states like Colorado that wouldn’t vote for him anyway, he added. So “what’s the endgame here?”

This lawsuit “was never really about keeping Trump’s name off Colorado’s ballot, because he was never going to win our electoral votes,” University of Colorado election law professor Doug Spencer told The Denver Post. “It was about using our state law to get a ruling like this — and maybe now other courts will look at this and maybe not be so skittish.”

Other state courts or election officials could be more willing to act “now that the bandage has been ripped off,” Notre Dame law professor Derek Muller told The Associated Press. “This is a major threat to Trump’s candidacy.” There are dozens of cases still being litigated, adding up to “a significant and uncertain political cost to Trump,” Muller wrote at Election Law Blog. Will Republican voters really “want to risk voting for a candidate who’s been declared by a court to be ineligible?”

What next?

The Colorado Supreme Court paused its decision until Jan. 4, 2024 — the day before primary ballots are finalized — or the U.S. Supreme Court agrees to hear Trump’s appeal. “That means Trump’s name could be placed on the ballot while the case is ongoing,” up through Colorado’s March 5 primary, The Washington Post reported. And even if Trump’s name is kept off the ballot, the Republican Party can still award him the state’s delegates through some other mechanism, like a caucus, Muller said.

The U.S. Supreme Court’s conservative majority has “several options” to thwart this “deus ex machina solution to the problem of Trump’s attempt to return to the presidency while under multiple criminal indictments,” if it wants to, Harry Litman wrote at the Los Angeles Times. The only certainty here is that “we are in for a wild and woolly constitutional ride over the next 16 days and perhaps beyond, and it’s difficult to know where or how it will end.”

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