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Current Affairs

A Magazine of Politics and Culture

The Courts Can’t Save Us From Trump

The Colorado Supreme Court’s gambit to ban Trump from the 2024 ballot likely won’t succeed, but it could very easily backfire. It’s the latest example of Democrats being politically clueless.

The Colorado Supreme Court has kicked former President Trump off the 2024 ballot in the state under a provision in Section 3 of the 14th Amendment disqualifying from office anyone who previously engaged in “insurrection or rebellion” against the United States, a clause put into place to prevent those who fought for the Confederacy during the Civil War from reassuming office. The ruling, of course, follows charges by special counsel Jack Smith for Trump’s role in fomenting the January 6 attack on the U.S. Capitol and his false claims of voter fraud to have his electoral defeat decertified. 

“We do not reach these conclusions lightly,” the Colorado Supreme Court wrote in its 4-3 decision to oust Trump from the ballot. “We are mindful of the magnitude and weight of the questions now before us. We are likewise 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.”

With this ruling, Colorado becomes the first state to bar the former president from running for office, an act which could set off an avalanche of similar rulings around the country—lawsuits have been filed in 16 other states attempting to have Trump removed as well. Colorado’s ruling now moves to the U.S. Supreme Court, which could effectively kick Trump off the ballot in all fifty states if it upholds the court’s decision.

This is an extraordinary step into uncharted legal and political territory, one that the Wall Street Journal says “forc[es] the justices to intervene directly in a presidential election in a way not seen since Bush v. Gore in 2000.” Only eight officials—all former Confederates—have formally been disqualified from the ballot using this measure throughout history (though thousands more were informally understood to have been disqualified from office after fighting against the Union). The last time it was invoked was in 1872, and it’s the first time such an action has been taken against a presidential candidate. 

With the decision to bar Trump, the Colorado court has taken a giant leap into a political abyss. For a decision of such magnitude—which the Colorado Supreme Court plainly acknowledged— they didn’t seem to give much consideration to whether this bold step would actually have the intended political effects. Even with a constitutional justification, they have, without question, made the bold step of effectively overruling the rights of voters in an entire state to decide who becomes the president, something never before seen in modern history.1

There’s a good case to be made that Trump’s exceptional actions and statements justify such an exceptional decision. Trump is obviously a danger to democracy: In an effort to reverse his electoral defeat, he spread claims of widespread voter fraud that—as many of his associates have since admitted under oath—were fabricated. Emails indicate he had been told by campaign associates that claims he made about voter fraud in Georgia were false, but Trump signed a sworn affidavit claiming they were true anyway. He has publicly said that he thought the January 6 attack on the Capitol in response to those made-up claims of fraud, was “a beautiful day” and that the rioters had “love in their heart,” while associates have testified that he resisted calling off the violence for hours behind the scenes. 

In his post-presidency, he has gotten less ambiguous about his desire to suspend any checks to his power should he reassume office. In reference to those same made-up claims of voter fraud, Trump said, “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” 

This past month, he pledged to be a “dictator” but “only on Day 1” (how reassuring) should he return to power. Soon afterward, on his Instagram account, he posted a video depicting Trump signs stretching from 2028 for hundreds of years into the future, implying a desire to remain in power past the Constitutionally allowed limit of two terms. This would have seemed like the usual Trump hyperbole in an earlier time, but given that he posted it just days after his “dictator” comments, it feels rather ominous.

from @realdonaldtrump on instagram

He has described immigrants as “poisoning the blood of our country” and pledged to build a massive new network of internment camps to swiftly detain and remove millions of immigrants without due process. 

It seems highly possible that he would not simply stop at detaining immigrants (though that would be bad enough). He has also pledged to “root out the communists, Marxists, fascists and the radical left thugs that live like vermin within the confines of our country that lie and steal and cheat on elections,” saying that “The threat from outside forces is far less sinister, dangerous and grave than the threat from within.” To that end, he has asked members of a prospective second-term Justice Department to prosecute critics, members of the media, and former associates and has drafted plans to use the military to crush protests to his inauguration. 

In comments made earlier this summer that were virtually ignored by the media, Trump also seemed to indicate a desire to deport American citizens who oppose him as well. After discussing a plan to “keep foreign Christian-hating communists, Marxists, and socialists out of America,” he pivoted to “the ones that are already here, that grew up here,” saying, “I think we have to pass a new law for them… At the end of the day, either the Communists destroy America, or we destroy the Communists. This is the final battle. With you at my side, we will drive out the globalists, we will cast out the communists.”

For those who have called Trump’s fascist rhetoric what it is, his spokesman Steven Cheung responded that “their entire existence will be crushed when President Trump returns to the White House.” 

It seems justifiable to me, at least morally, to use any means necessary to keep a person like this off the ballot. Even if it requires Republicans to run a different candidate from the one their voters would have chosen (and potentially who the whole of the country would have chosen), that still seems like a reasonable trade to make if it would prevent the purges and camps Trump has intoned so darkly about. 

 But just because something is morally justifiable does not make it politically wise. It’s just as important to consider whether the Colorado court’s decision will actually achieve what it sets out to do. It almost certainly will not. The question of Trump’s candidacy will now be thrown to the United States Supreme Court, which is made up of a 6-3 conservative majority (including three justices appointed by Trump himself). For this reason, it seems nigh inconceivable that the court would side with Colorado and agree to bar Trump from the ballot nationwide.

There is a near certainty that Colorado’s maneuver will fail. For one thing, the legal case against Trump seems rather shaky—not only has he not been convicted of insurrection, he has not even been charged with it. The Congressional Research Service points out, “Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary.” Be that as it may, we all know that the primary considerations for the U.S. Supreme Court are political rather than legal. The U.S. Supreme Court would presumably rule in Trump’s favor regardless of what the law says (though there is always the outside possibility that they will side with the core of Republican donors that is desperate to claw the party back from Trump). 

The Colorado Supreme Court did, of course, provide their own substantial legal reasoning for why their decision was correct despite the lack of insurrection charges against Trump, even trying to argue that their ruling was consistent with past precedent set by sitting conservative Justice Neil Gorsuch. But considering the court’s willingness to simply make up justifications out of whole cloth for their decisions surrounding abortion and student debt forgiveness, they should be smart enough to realize that appealing to the law is a mug’s game.

This decision is very, very unlikely to achieve the intended effect of ousting Trump from ballots around the country. But it does have the potential to unleash a new, even more precarious political paradigm in which kicking candidates off the ballot is a normal part of state politics.

Shortly after the decision, Rep. Marjorie Taylor Greene (R-GA) went on TV to argue that Biden and the Democrats “should be held accountable for treason over what is happening at our southern border” and agreed with a tweet saying “red states…should act to ban President Biden, and all relevant Democrats, from their state ballots.” “The Democrat Party has opened a door they should have NEVER opened,” Greene wrote. “They should be forced to live by their own rules.”

 Soon after, Republicans in three swing states—Pennsylvania, Georgia, and Arizona—drafted legislation that would remove Joe Biden from the ballot. Of course, Republicans certainly may have done this eventually even without provocation (after all, many Republican officials and pundits have been getting more comfortable openly making the case against representative democracy). But for no discernible gain, Colorado’s supreme court just handed them the perfect excuse to perform their own ballot chicanery. And while it’s highly possible that the Supreme Court would strike Republican efforts to bar Biden, we can’t take it for granted. 

Colorado’s high court also failed to consider how it might impact the national view of the Trump vs. Biden race. The idea of “preserving democracy” has long been one of the major reasons Democrats have provided for why Trump must be defeated. That idea seems to have resonated at the ballot box to Democrats’ advantage: during the 2022 midterms, more than 4 out of 10 voters—56 percent of those who ended up voting for Democrats compared with just 34 percent of Republican voters—said that “the future of democracy was their primary consideration,” according to an AP poll.

 While Colorado’s decision obviously exists in a larger context of Trump’s many anti-democratic actions, it’s probably fair to say that it will make at least some of those voters reconsider the idea that Democrats are the “pro-democracy” party. Republicans are certainly running with this story to fuel their own narrative that Democrats are the real anti-democratic authoritarians. Take, for instance, Texas Lieutenant Governor Dan Patrick, who went on Fox News immediately after Colorado’s decision to suggest that he’d like to take Biden off the ballot, “except we believe in democracy in Texas.” 

A move like this absolutely bolsters Trump’s assertion that his opponents are plotting against him and upending the democratic process. Colorado’s high court has unilaterally decided that voters are not allowed to choose Trump, which sure feels like an abridgment of democratic principles even though they presented a constitutional rationale for the decision. Trump has correctly pointed out that he is currently blowing Biden out of the water in the polls. Even if a moral case can be made, kicking Trump off the ballot looks like a desperate, cowardly maneuver by people who expect to lose. While the desire to oust Trump is completely understandable given his undisguised dictatorial impulses, the decision by Colorado’s court seems liable to only boost Trump’s arguments and muddy the waters about which party is more of a threat to democracy. 

But at the risk of getting too lost in the morass of trying to guess what voters think, it should be stated very clearly that we absolutely should not be in this situation at all. The fact that Trump is currently leading the incumbent president in every swing state entering 2024 is a profound indictment of the Democratic Party’s approach to politics and indicates that they are either indifferent to the threat Trump poses or are simply oblivious about the possibility that they could, once again, lose to him. A party that took seriously the imperative of stopping Trump would not be doing many of the things the Democrats have done in recent months.

For one thing, they would not be coronating a candidate as doddering and widely loathed as Joe Biden for a second term and doing everything possible—including re-arranging the order of primary states and canceling debates—to squash opposition. They would not be tripling down on the alleged success of “Bidenomics” as rent becomes less affordable, child poverty soars and homelessness reaches record highs. They would not be antagonizing three-quarters of their own voters by describing calls for a ceasefire between Israel and Gaza as “repugnant” and “disgraceful” as Biden’s Press Secretary Karine Jean-Pierre did back in October. (Over the first month of the war, Biden’s approval rating among Democrats dropped by 11 points as he doubled down on unconditional support for Israel’s military operation that, as of late December, has killed nearly 30,000 Palestinians, the vast majority civilians2).

The sirens should be blinking red at the DNC right now, But a harrowing New York Magazine feature from Gabriel Debenedetti suggests the party brass simply do not grasp the amount of trouble they are in:

“While commentators and many strategists are aghast at Biden’s polling slide and desperate to see a course correction, the president’s aides at the White House and at reelection headquarters give every indication that they consider the election very much under control.” 3

That lackadaisical attitude may explain Democrats have had such a stunning lack of coordination and thought in dealing with Trump’s criminal behavior as well. Democrats had majorities in both the House and Senate on when the January 6 attack happened. If they wanted to—using the same “insurrection” clause of the 14th Amendment as Colorado just did—they could have barred Trump from office with simple majorities on January 7. They could have taken advantage while the nation was still shocked and a majority of Americans supported removing Trump immediately. Sure, the Supreme Court could have still overruled them, but it’s a bit harder to imagine them doing that mere weeks after he’d just inspired a mob of crazy people to try to lynch members of Congress.

Instead, they inexplicably pursued dead-on-arrival impeachment proceedings that required an impossible amount of Republican support and spent the next three years allowing Trump to recuperate politically while they pursued a meandering series of hearings nobody watched and waited patiently for Trump to be dispatched by the legal system, something that still doesn’t guarantee he’ll be dealt with because he can still be elected from jail. Only now, once it’s far too late and Trump has re-emerged as the likely victor in 2024, is the prospect of barring him finally being revitalized.

Why are the Democrats like this? It’s one of those things that we love to debate in left circles. Maybe, some suggest, they’re trying to lose to avoid the responsibility of actually carrying out the popular will. I can’t say for sure that they’re not. But I don’t think trying to suss out their motives will get us any closer to figuring out what to do about a party that is so self-evidently flailing and incompetent. A party with any guile would not leave such an important decision up to the Colorado Supreme Court in the first place. A party terrified about the ascent of a dictator would not let a senile mummy serve as democracy’s final bulwark. Whether their failure is deliberate or simply the result of staggering incompetence is immaterial. The Democratic Party is a broken institution that cannot protect us from what might be coming. If Trump wins and initiates the authoritarian crackdown he now gleefully promises, they will be the first to blame.

A version of this article originally appeared in the Current Affairs News Briefing.

  1. Obviously, this is far from the first time state courts have abridged the voting rights of certain groups of people in modern history. But it’s the first time since the Reconstruction Era that voters have been barred from choosing a particular candidate for reasons other than age, citizenship, residency requirements, or failure to meet certain procedural guidelines. 

  2. This estimate comes from the Euro-Mediterranean Human Rights Monitor. Their report from Dec. 26, 2023, says: “As of Tuesday 26 December, 29,124 Palestinians had been killed…The majority of those killed in the Israeli air and artillery attacks on the Gaza Strip were civilians, including 11,422 children, 5,822 women, 481 health personnel, and 101 journalists. Meanwhile, 56,122 Palestinians have been injured, with hundreds of them being critically wounded, said Euro-Med Monitor. This number includes thousands of victims who are still stuck under the rubble of buildings, while hundreds more remain uncounted, but are likely either trapped under rubble or injured in the streets.Euro-Med Monitor estimates also indicate that there are more than 1.920 million displaced people in the Gaza Strip who remain without a safe shelter amid inhumane conditions. 

  3. One throwaway line from the piece that left my mouth utterly agape: “Some liberals, alarmed by Biden’s unpopularity, [are] nervous that the campaign is moving too slowly. Several vented their worries to Politico recently that state-level hiring is well behind the pace of the Trump 2020 and Obama 2012 campaigns. Biden aides think this criticism entirely misses the point: They’re deliberately avoiding Obama’s pattern, which proved to be expensive.” Too expensive??? My brother in Christ, you are the incumbent president! 

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