The Colorado Supreme Court handed the Democrats a huge opportunity by barring Donald Trump from being on the state's presidential ballot based on a "novel" reading of the 14th Amendment.
Even if the decision is struck down, that "novel" interpretation of the law has handed a propaganda weapon to the Biden campaign that can't be overturned or undone.
It should be noted that the Supreme Court hates "novel" theories of the law. They rarely accept them as a rule and are inclined to dismiss cases using unusual points of law.
But this Supreme Court has also shown a reluctance to involve itself in matters pertaining to elections at the state level. A majority of justices may look for an "out" and toss any challenges to the Colorado Supreme Court's decision based on procedural grounds.
Since there are going to be other similar challenges coming their way, the justices are more likely to try and make a definitive statement on Colorado's novel theory of what the 14th Amendment says.
For example, they may make a definitive ruling, settling the question once and for all of whether Trump was part of an "insurrection" or not. That's at the heart of the challenge to Trump's ballot access based on the 14th Amendment.
Democrats on the January 6 Committee say they've "proved" it. Biden is now saying that there's "no question" Trump is an insurrectionist.
But "insurrectionist" is a legal term. And once the Supreme Court finds that Trump may have welcomed efforts on his behalf to change the results of the 2020 election but had no part in planning or participating in the efforts, the Colorado Supreme Court's case will fall apart and all other challenges to Trump's ballot access will fail.
It takes a twisted reading of the 14th Amendment to reach the conclusion that the Colorado Supreme Court reached. Of course, this was a legal doctrine in search of a legal justification
One radical leftist gets it. Jonathan Chait questions the theory that undergirds Colorado's challenge.
The weak point in this argument is the finding that Trump’s behavior constitutes “insurrection.” This is a defensible shorthand for January 6, one I’ve used frequently myself. But it’s not the most precise term. When I have the chance to use a longer description, I generally say that Trump attempted to secure an unelected second term in office.
Trump’s plan was to mobilize a mob to intimidate Congress into following his scheme to ignore the election results. His use of violent threats to secure power is obviously unforgivable, authoritarian, and very likely criminal. But there is at least some grounds to question whether it was an “insurrection” in the meaning intended by the 14th Amendment. Trump was not trying to seize and hold the Capitol nor declare a breakaway republic.
There's been no testimony that Trump "planned" anything. That's a left-wing fantasy that's needed to make Trump's actions appear menacing.
Chait, however, thinks that because of the proximity to the 2024 presidential election, the Supreme Court needs to use rock-solid reasoning in its ruling on whether Trump was trying to commit "insurrection."
What I’m arguing instead is that the timing of the court’s ruling makes it more imperative that its reasoning be unassailable. And the conclusion that Trump’s attempt to secure an unelected second term was “insurrection” isn’t solid enough to bear the weight of the outcome it supports.
To deny the voters the chance to elect the candidate of their choice is a Rubicon-crossing event for the judiciary. It would be seen forever by tens of millions of Americans as a negation of democracy. It is not enough that their belief is plausibly wrong or likely wrong. It must be incontrovertibly wrong to support such a momentous step.
That's a very high bar SCOTUS is going to have to leap in order to deny Trump access to the ballot.
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