A Constitutional Question

[ Posted Wednesday, December 20th, 2023 – 17:11 UTC ]

The Colorado supreme court decision that ruled Donald Trump ineligible for the state's primary ballot was a legal and political earthquake, and we're still experiencing the aftershocks of it. For the moment the questions are fairly simple: will the United States Supreme Court hear and rule on the case before the January 5th deadline or not? And, of course, which way will they rule, if they take it up? But there are going to be further reverberations from this that echo across other states as well, so we could all be in for a very bumpy ride.

The Colorado high court ruled that Trump had indeed engaged in a rebellion against the U.S. government, and therefore he was ineligible to become president again by the clear text of the Fourteenth Amendment... and thus should not appear on the Republican primary ballot (since ineligible candidates shouldn't be presented to the voters as a valid choice). The case did not, however, rule on whether Trump should be allowed on the general election ballot next November (the lawsuit was specific to the primary), so perhaps there will be a second case later to determine this, but the outcome will likely be the same (barring intervention from the U.S. Supreme Court).

If the U.S. Supreme Court is going to rule, it's got to do so quickly, as January 5th is the date when the primary ballots are set in stone (figuratively -- they're really "sent off to the printer"). Trump hasn't even filed his challenge yet, but this should come with lightning speed, one assumes. As with any case, the Supreme Court could do three things: ignore it, uphold the decision, or reverse the decision. All will have a profound effect on the election. [Note: at this point, I am not going to get into a legal analysis of the case at all, I am merely speaking of the practical effects this will have.]

If the Supreme Court ignores the appeal to rule on the case, then the Colorado court's ruling will stand and Trump won't be on the GOP primary ballot (and also likely won't appear on the general election ballot, although that will likely take another court case to happen). This is probably a longshot, since the court is almost certain to take up the case (due to its importance and the open constitutional question it raises), although they could punt by ruling something like: "We are not going to get involved in this because neither political parties nor primaries are even mentioned in the Constitution -- come back to us when a similar court rules on the general election ballot and we will take it up then." That's a possibility.

If they do take up the Colorado case on an expedited basis, then we will have arguments before the court at some point over (or proximate to) the holidays. And a ruling early next year. If the court upholds the ruling, it will open the gates to other states making similar rulings. But if the Supreme Court rules that Trump should be on the ballot and overturns the Colorado court, then it would tend to slam the door shut on any similar claims elsewhere.

It's when you start to consider the practical effects of all of this that the questions as to what will happen in the 2024 election get a lot more complicated. If the Supreme Court shuts the idea down, it will depend on how they do so. They could rule that Trump has not yet been convicted in a court of law and therefore has not received proper due process yet -- in other words, he has not been convicted of any crime relating to the attempted insurrection in a court of law, therefore he must be considered innocent. That would probably take care of things for the entire primary season. But what if Trump is convicted in the federal January 6th case by the time of the general election? That would change things, obviously. However, Trump was not directly charged with sedition in this case, so he could argue even after being found guilty of the other crimes that he is still innocent of sedition.

The Colorado ruling is not likely to change anything in a practical manner. My guess now is that Trump will still win the GOP primary even if his name is not on the ballot, as all his followers write him in as a candidate ("Donald Trump" is not that hard to spell...). And he's never going to win Colorado in November, so whether he's on the ballot or not (whether people can vote for him on the general election ballot directly or have to write in his name) is not going to matter -- he's still going to lose the state.

It's the other states where things could get very constitutionally dicey. All it would take would be for one lawsuit in a true battleground state (not a blue state like Colorado, in other words) to achieve the same thing -- kicking Trump off the general election ballot. Now let's game out what would happen if that were the case. Biden could win the state -- but Trump and his followers will howl that keeping him off the ballot was "rigging the election" and antidemocratic. This argument would resonate with a lot of people -- on both sides of the aisle, I would guess. The concept of "fairness" is a fundamental one to America, and many would see this as being patently unfair to Trump.

Or, conversely, Trump could actually win the state as a write-in candidate. But if this were to happen, what would happen next? The state would have to certify the results and declare its Electoral College electors for a candidate. But if the highest court in the state had already said Trump was ineligible to serve, then the state's governor and legislature might decide that it was unconstitutional to send Trump's electors' votes to Washington. Maybe they would declare the winner was the candidate who got the most number of votes who was legally eligible to serve as president, and switch their electoral votes to Joe Biden. This would directly lead to Trump and his followers howling about unfairness -- and they'd have a point. Or the state could just refuse to send in any delegates, which would have exactly the same effect (Trump howling).

The basic problem is that this has never really happened before. That section of the Constitution was inserted after the Civil War and has indeed been used to deny ex-Confederates (and a few others) offices. But never a president, and never a candidate for president. And because it is such an obscure clause, Congress has never passed formal processes for how banning someone from office is supposed to work (do you wait until they are have been elected to office and then throw them out or deny them the seat, or do you intervene earlier, during the election process?). So we're all making it up as we go along, for the most part.

But you can see, if you look over the horizon a little bit, how this could be the biggest monkey wrench yet in the 2024 election. And as usual with anything connected to Donald Trump, we are in uncharted waters. Nobody knows how the Supreme Court will react -- even though it is a solid 6-3 conservative majority (three of whom Trump appointed), they haven't yet been overly deferential to his wild claims about elections or any of his other legal challenges. But this time around I think it's going to be near-impossible for them to just ignore things. There is indeed a constitutional question that has to be resolved here, and ignoring that would be shirking from their duty in a big way.

The only thing that appears certain, at this point, is that an already chaotic election with lots of legal entanglements has just gotten even more chaotic.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


2 Comments on “A Constitutional Question”

  1. [1] 
    Kick wrote:


    The Colorado ruling is not likely to change anything in a practical manner. My guess now is that Trump will still win the GOP primary even if his name is not on the ballot, as all his followers write him in as a candidate...

    Guess again, CW:

    Accordingly, we conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore, the Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him. See Section 1-7-114(2), C.R.S. (2023) (“A vote for a write-in candidate shall not be counted unless that candidate is qualified to hold the office for which the elector’s vote was cast.”).

    The ruling also bars the Colorado Secretary of State from counting any write-in votes for Mein Drumpf.

    But their plan has a major flaw: the court's ruling also bars the Colorado secretary of state from counting any write-in votes for Trump.

  2. [2] 
    Kick wrote:

    ^^^^^ Ooops, posted prematurely. That last paragraph should read:

    The MAGAts had the idea to write in "Trump," but their plan has a major flaw.

    Reading is fundamental. :)

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