The Colorado Supreme Court was clearly right to reverse the lower court’s silliest error: The President is obviously an “office” covered by the 14th Amendment’s disqualification clause.
But let’s tap the brakes on all this premature celebration. I wish I could say that it would make a difference, but it’s more likely to backfire, like the Manhattan DA indictment backfired (Trump’s polling spiked immediately, and notice how Bragg has been eager to delay his weak case as long as possible).
The Supreme Court is likely to reverse Colorado, and it will probably be right – at least on prudential grounds. The history and facts are not clear enough to warrant such a late intervention. If the evidence of Trump participating in an “insurrection” (rising to the level of the 14th Amendment’s text and context) were clear, case should have been brought much earlier.
To be clear, Alan Rozenshtein and I have argued here that Trump’s “overt acts” conduct – on top of his Jan 6 speech – could constitute criminal incitement and obstruction, distinguishable from protected First Amendment speech. But we also acknowledged these problems are challenging, and the meaning of “insurrection” circa 1860s is especially difficult and contested by serious scholars.
In part because the facts, the history, and the precedents were unclear, the plaintiffs had to wait, and then waited too long, when the party nomination process would be over by the time appeals would be heard, much less decided. It’s like a “Purcell principle,” (don’t change districting or voting rules too close to an election), as applied to candidates’ disqualifications if the challengers waited too long and their delay created the timing problem.
Trump is a dire threat to democracy, but this case isn’t so great for democracy, either. Sorry.
Shugerblog 