The brouhaha of the day is the Colorado Supreme Court’s decision to bar Donald Trump from the Republican Party ballot on 14th Amendment grounds. I will leave the legal discussion to others and delegate my reaction on the politics of it to Eric Boehm at Reason.com:
What’s the endgame here? President Joe Biden (or whomever the Democratic nominee turns out to be) is likely to carry Colorado whether Trump is on the ballot or not. Let’s suppose courts in other blue states follow Colorado’s example. Now he’s missing from a bunch of states’ ballots, but not ones that are likely to affect the election’s outcome. What happens then?
In one scenario, Trump loses but his supporters are able to nurse a permanent grievance that the system wouldn’t even let their guy compete. Not for the abstruse reasons that Trump’s team tried to conjure up after the 2000 results came in, but because of something that’s easy to understand and easy to see as a legitimate grievance.
In another scenario, Trump wins the Electoral College—remember, these states weren’t likely to vote for him anyway—but with a far lower percentage of the popular vote. Indeed, the popular and electoral votes would be even more mismatched than in 2016 or 2000. In terms of democratic legitimacy, that outcome might be even worse for the future of the country.
But those are the two new possibilities that the Colorado’s Supreme Court has opened with its ruling on Tuesday. All in all, that seems like a decision that will make things worse, not better.
I continue to wonder what the operative definition of “democracy” is. Apparently, it’s not allowing candidates onto ballots now. That smacks of “burning the village in order to save it” but it’s the consequence of the slippery slope of using lawfare to manage elections.
Here’s a scenario.
The Supreme Court refuses to overturn the decision. They state simply that the case is not ripe for decision and that Congress is the one with the tools to address Trumps eligibility and the efforts to disqualify him.
Trump is disqualified in a whole set of states in November. The voters somehow vote a Republican House and Senate. The Supreme Court again say it is for Congress to decide on Trumps eligibility. On Jan 6, 2025, the new House and Senate vote that all states who disqualified Trump will have their electoral votes marked as irregularly given and are not counted. Neither Trump and Biden commands a majority of electoral votes and Congress goes into a contingent election…..
I don’t see why the Supreme Court should be the only one pushing back against lawfare in elections — let the people, representatives, and even state judiciary see the consequences and own the responsibility for it.
It could happen that the SCOTUS won’t hear the case. There are many reasons for that.
However, I think it’s more likely that an appellate court will overrule the CO Supreme Court’s decision and the SCOTUS will deny cert.
I lean towards predicting the SCOTUS will accept an appeal directly from the Colorado Supreme Court. Certainly they can dodge it because the US SCOTUS is not a court of errors, but it seems clear that other cases will follow, the case has the possibility of becoming moot, throwing the dispute to Congress when it chooses which electors to certify, and accepting the first opportunity would allow them more time to decide the case. On that last point, the Chief Justice has been critical of judicial interference while votes are being cast.
The main reason I’m skeptical of the legal effort is that the proponents of removing Trump have to prevail on a number of different issues in interpreting and applying the law, Trump needs only succeed on one.
I think one conclusion is no matter who wins, at least 40% and likely a plurality of the country will view the winner next November as illegitimate.
SCOTUS will hear the case and overturn it. It was a bad decision. It’s a feel good decision with weak legal underpinnings. While he clearly encouraged an insurrection you need a court decision to back it up, just like you have all of the court decisions showing the vote was not stolen.
Steve