You don’t have to be a Trump supporter (I am not) to be deeply troubled by Colorado court decision to keep Donald Trump off the primary ballot.
Let me count the ways.
First, the reason Trump is being excluded is new, untested, and profoundly controversial in its application here. Basically, the court is saying Trump cannot appear on the primary ballot because of a subsection of the Fourteenth Amendment meant to exclude Confederate officials who waged a civil war against the United States. Using that provision to exclude Trump is utterly novel. Its unprecedented use here invites the conclusion that it is being wielded as a political sledgehammer by Trump’s opponents and that some of those opponents wear judicial robes.
Trump’s supporters took a nanosecond to reach that conclusion, and they are furious. But it’s not just them. All his Republican opponents came out immediately against the court ruling.
The backlash against the ruling will also spill over to other Trump prosecutions. Prosecutors waited three full years to bring these cases, and it is not a wild conjecture to think they waited to inflict maximum damage on a presidential campaign.
Special Counsel Jack Smith strengthened that conclusion recently when he appealed directly to the US Supreme Court to contest Trump’s claim of immunity. Smith’s argument for by-passing the normal appellate process boils down to the raw claim that “I need to try this guy before the election.” That’s a political declaration, not a legal argument.
Returning to the Colorado decision, it will almost certainly be overturned by the Supreme Court. The High Court will likely conclude that Trump’s appearance on the ballot is essentially a political question. The court overstepped its authority by intruding.
When courts intervene so boldly in the political realm, as the Colorado court did, and when they use novel legal theories to do it, as the Colorado court did, they inflict serious damage on the entire judiciary and on our constitutional separation of powers. The most obvious harm is that those courts no longer appear unbiased. That damage spills over to all courts. They look as if they are trying to reach a specific judgment to hurt (or help) one candidate.
In this case, the Colorado court found that Trump could be kept off the primary ballot for his role in the events of January 6. Those events were shameful since they attempted to disrupt the peaceful transfer of power by well-established Constitutional means (the counting of electoral votes). Vice President Pence performed heroic service to our country by refusing to bend to the pressure despite the threats to his safety.
Whatever you think of the events that day, Trump has never been charged with any crime for his role in them, much less convicted. If he had been charged, the violation would have been against federal laws, not state election laws. If the alleged violations were essentially political, not criminal, then the constitutional remedy is impeachment and removal from office. For a state court in Colorado to attempt to try that case and impose a judicial punishment on Trump for his role on January 6 goes well beyond its rightful authority.
If the Colorado ruling stands — it won’t; federal courts will overturn it quickly — it will invite local courts in fifty states to begin intervening in the next presidential election unprecedented ways. Believe me, you do not want to invite courts in every zip code to start meddling in federal elections and you don’t want them to start applying Constitutional provisions that have never been used before. The best description of the result would be “chaos.”
The Colorado court decision has harmed the legal system in another way, beyond the presidential election. Among of the most important features of any legal system are its stability, continuity, and predictability. That’s why courts rely on precedents and why novel applications of the law are so destabilizing. Legal precedents do more than put the latest ruling on solid ground. They allow the public to know, in advance, which rules will apply to their actions so they can make prudent decisions. They need to know the legal boundaries and constraints. That’s one reason we prohibit ex post facto laws.
The Colorado court’s unprecedented ruling shatters that stability, undermines public faith in the judiciary, and attacks the bedrock idea that, in a democracy, voters can choose the candidate they prefer. The court’s decision won’t survive, but it has already damaged a nation that seems to suffer new wounds each day.
