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  • Writer's pictureThe San Juan Daily Star

The Colorado ruling is a rebuke for the ages

Rachel Mummey for The New York Times

By Jesse Wegman

How can it be that nearly three years after Donald Trump incited an insurrection to stay in office, interfering with the peaceful transfer of power for the first time in American history, he remains eligible for a second term as president? In a stunning ruling on Tuesday night, the Colorado Supreme Court answered that question: He can’t be allowed to run again.

The court’s 133-page decision said that he is not eligible to be on the state’s ballot for president under Section 3 of the U.S. Constitution’s 14th Amendment, which bars from public office anyone who swore an oath to the Constitution and then engaged in or aided an insurrection against it. The Jan. 6, 2021, attack on the Capitol was an insurrection, the court found, upholding part of a trial judge’s ruling from last month, and Trump engaged in it.

In so ruling, the court produced an epochal moment in American law and politics, a rebuke that will reverberate through the ages no matter whether the U.S. Supreme Court chooses to uphold it.

It’s no surprise that the opinion in Tuesday’s ruling, which was 4-3, reads as if it was written in part for the history books. “We are mindful of the magnitude and weight of the questions now before us,” the majority said. “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.”

The court reversed another part of the trial judge’s ruling, which had said that Trump could remain on the ballot in Colorado because Section 3 does not explicitly refer to the office of president. It makes no sense, the court explained, that “Section 3 disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section 3.”

There are plenty of caveats here. Courts in other states have already dismissed similar 14th Amendment challenges to Trump’s candidacy, which could diminish the practical impact of the Colorado ruling. The three Colorado judges who dissented raised concerns about a lack of due process at the trial level, questioning whether the action could be taken without Trump being convicted of insurrection. The U.S. Supreme Court may well reverse the decision on any number of grounds, including the questions of whether the events of Jan. 6 constituted an “insurrection” and, if so, whether Trump “engaged” in it.

But all these concerns only amplify an important point: Shouldn’t both major parties insist on presidential candidates for whom such questions are not even remotely at issue?

I wish the answer to that was an easy yes. Instead, the Republican Party is on the cusp of anointing Trump for the third time in eight years. And for a terrifyingly large faction of voters, his leading role in the insurrection — not to mention the 91 felony counts he faces in four criminal trials and his open contempt for the rule of law — is not only not disqualifying, it’s one of his key selling points.

Faced with such a menace, what are the country’s institutions of government to do? It’s easy to say that Trump’s ultimate rejection should come at the hands of the voters, not the courts; I have been inclined toward that view myself. The obvious rejoinder is that an outright majority of voters already rejected Trump in 2020, and we know how that turned out: brutal violence, several deaths and the enduring myth of a stolen election. Why should we expect it to be different next time? If anything, the threats of chaos and violence by Trump and his allies have only grown bolder.

But there is a reason we have a written Constitution, and courts tasked with interpreting it. Not every decision in our system is left solely to voters. The 14th Amendment’s bar on insurrectionists serving in office, which was drafted to target former Confederates after the Civil War, “is a statement that certain things will be withdrawn from the terrain of electoral contest,” Rep. Jamie Raskin, D-Md., a former constitutional law professor, told me recently.

Voters still get to cast their ballots for nearly anyone they want, Raskin said. But “the framers of the 14th Amendment contemplated that there would be people who would be otherwise attractive to a certain portion of the population who must be kept off the ballot because they are a threat to the Republic. Their obnoxiousness is not within the normal course of American electoral politics.”

Trump’s appeal of the Colorado ruling to the U.S. Supreme Court would give the justices three Jan. 6-related cases on their docket, all demanding resolution well in advance of the 2024 election. (The other two involve Trump’s claim of immunity from prosecution and a challenge to a federal obstruction law used to prosecute many Jan. 6 attackers, as well as Trump.)

As the justices in Washington weigh these matters, they will no doubt be aware of the political unrest surrounding them. They know that Trump has built a large political following and is marshaling his followers to turn against the justice system for indicting him, to intimidate law enforcement officials and court personnel and anyone else who gets in his way. They are aware that he will whip his die-hard followers into a frenzy against the Supreme Court itself, just as he unleashed his followers to try to bend Congress to his will on Jan. 6.

The justices’ challenge will be to face all of this head-on rather than to run scared from it, as so many Republican lawmakers did on that day, when they continued objecting to the certification of Joe Biden’s electoral votes even after the bloody attack on their workplace. The justices’ challenge is to not twist the law in a craven effort to appease an authoritarian movement that sees violence as the answer, win or lose.

“This is the correct legal result,” Gerard Magliocca, a law professor at Indiana University and an expert on Section 3, told me about the Colorado ruling. “Whether it’s going to be the final result, or the result that is politically acceptable, is something else.”

For now, though, the constitutional bell has been rung in Colorado. A state supreme court has found that Trump engaged in an insurrection in his efforts to overturn the 2020 election by inciting a violent mob to attack the Capitol and is therefore disqualified from serving again as president. Even if the ruling is eventually overturned, the bell cannot be unrung.

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