The Colorado Supreme Court ruled late Tuesday that former President Donald Trump can't appear on the state's 2024 presidential ballot. Trump immediately promised to appeal, putting the question of when and why a candidate for the nation's highest office can be disqualified from running on the fast track to the US Supreme Court.
The court's decision was founded in the 14th Amendment, which was ratified shortly after the US Civil War and was initially intended to prevent Confederate politicians and military leaders from assuming new posts in the government they'd rebelled against. It states that anyone who "engaged in insurrection or rebellion" against the United States cannot hold any civil or military office.
Since those days, the amendment largely laid dormant … until Donald Trump sought to overturn the results of the 2020 election and his supporters stormed the United States Capitol in a violent attempt to realize the outcome that Trump's legal arguments had failed to achieve.
Almost immediately, legal scholars began theorizing that the amendment's plain language disqualified Trump from office. While some suggested that state election officials could simply remove Trump from their ballots unilaterally, none of them agreed to do so. Instead, the issue went to the courts.
Now Colorado's high court has rendered its ruling. In their decision, the state judges openly acknowledged that the controversy will ultimately be settled by the US Supreme Court, which has three justices who were put on the bench by Trump himself. The smartest legal minds in our newsroom are doubtful that a SCOTUS dominated by conservatives would be willing to disqualify the likely Republican presidential nominee from next year's election.
Ultimately, even if we would like to pretend otherwise, this is a political question as much as a legal one. There is little precedent for interpreting the 14th Amendment outside of the Civil War context. Trump has not been convicted of insurrection — at least not yet — and he may never be. If not, how can he be considered an insurrectionist under the Constitution?
And yet, the former president poses a clear and present danger to American democracy: He already tried to reverse one election through extralegal means and some Republicans who saw his administration up close warn he would "unravel the rule of law" if elected again.
So what are we to do? Do we trust in democracy itself to stop him at the ballot box? Or are extraordinary measures necessary to prevent even the possibility that a man as openly hostile to democratic governance as Trump could reclaim the presidency?
It is an impossible question. That was my takeaway from reading Andrew Prokop's thoughtful analysis of the problem. Either option invites catastrophe. Let us briefly review the arguments on both sides.
- The case for disqualifying Trump: He already tried to destroy American democracy through his actions on January 6 and if he were to win the presidency again, he's suggested he'd be willing to do worse. The harsh lesson of history is that you cannot simply count on elections to hold the authoritarians at bay: Even if they do win through legitimate means, they will quickly dismantle the system.
- The case for not disqualifying Trump: Post WWII, Germany set up a rigorous, trusted system for ensuring dangerous politicians could not seek office. The 14th Amendment is similar in some ways; however, a lack of institutional trust in the federal government could spark a dangerous backlash if Trump is disqualified.
Andrew does not come to any firm conclusion, because our democracy has traveled into unchartered waters. I would not presume to have the answers either. Instead, I would urge you to read Andrew's piece and Ian Millheiser's coming legal analysis in full.
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