Colorado Supreme Court has spoken

And Fox News providing their pictures!

How will SCOTUS thread this needle? They're going to have to decide whether Trump is immune from prosecution, and now, whether he's barred from running by the 14th Amendment.  I don't think they can refuse to take either case.  My guess is they'll vote against him on the former question and for him on the latter.  Of course, they're not voting for or against HIM.  But they are.  Well, some of them are.

...but hey, do what you want...you will anyway.

UPDATE 10:17 am:

Originally aimed at the leaders of the Confederacy, the provision disqualifies officials who “have engaged in insurrection” against the United States from holding federal office.

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And were we to adopt the view of Trump’s lawyers, Colorado and other states could not exclude candidates from the ballot even if they plainly fail to satisfy age, residency, citizenship and other requirements.

The potential political impact of the ruling, however, could not be more seismic. It stands to upend the 2024 election by providing a deus ex machina solution to the problem of Trump’s attempt to return to the presidency while under multiple criminal indictments — two of them for attempting to overturn the results of the last election.

But the complications of the case going forward are many and extreme.

The first question is whether the U.S. Supreme Court will take up the case, which seems very likely.

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[...] the Supreme Court could hold that the Colorado justices shouldn’t have taken up this question in the first place. The rationale would be that Section 3 is qualitatively different from other constitutional qualifications and isn’t susceptible to court resolution.

Colorado’s chief justice, Brian D. Boatright, advanced that reasoning in his dissent, arguing that disqualification on 14th Amendment grounds has to take place somewhere other than a court. “Unlike qualifications such as age and place of birth,” he wrote, “an application of Section Three requires courts to define complex terms, determine legislative intent from over 150 years ago, and make factual findings foreign to our election code.”

Some version of this argument has prevailed in Minnesota and Michigan, where courts have dismissed similar efforts to disqualify Trump. And this U.S. Supreme Court seems particularly likely to issue a ruling along these lines. Consider, for example, its parallel though dubious conclusion that most gerrymandering is beyond its capacity to adjudicate.

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That would still leave room for Colorado’s highest court to decide that it has the power to adjudicate Trump’s qualifications based on the state’s constitution and laws.

  Harry Litman @ LA Times

Continue reading

UPDATE 11:36 am:

The Supreme Court will almost certainly intervene. And, just to be plain about it, the conservative-controlled court will almost certainly rule that Trump is allowed on the Colorado ballot. It would be wrong for anybody to get their hopes up: Republican-appointed justices are incredibly unlikely to kick the presumptive Republican nominee off of a presidential ballot.

But the Colorado opinion is designed, at least, to make the Supreme Court look very ugly and partisan when it bends over backward to save Trump and preserve his ability to threaten the country. That’s because the Colorado opinion is grounded in two things the Republicans on the court claim to hold dear: textualism and states’ rights.

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Donald Trump engaged in insurrection. That’s not me saying it, or Jack Smith saying it; that’s what the first court to hear this case, the Colorado state court, ruled at trial a few weeks ago. The trial court found that Trump engaged in insurrection, but twisted itself into an illogical knot to say that Section 3 didn’t apply to Trump because he was the president of the United States, and not an “officer” of the United States.

That was silly.

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If the US Supreme Court intervenes and overrules Colorado, not only will it be going against the plain text of the 14th Amendment; it will also be trampling over Colorado’s right to interpret its own state laws. As you may have heard, “states’ rights” is kind of a big thing in conservative circles. Remember, it’s conservatives who think states have the right to gerrymander away the voting power of racial minorities because of “states’ rights.” They think the states can limit voting hours and deny early voting because of “states’ rights.” In 2013, in Shelby County v. Holder, Chief Justice John Roberts ruled that the federal government can’t even use the 15th Amendment and the Voting Rights Act to stop the Confederate states from changing their voting laws back to Jim Crow procedures meant to disadvantage Black voters… because of “states’ rights.”

Now, the Colorado Supreme Court has gone and used the conservatives’ own obsession with states’ rights against them. Literally. The court quoted Justice Neil Gorsuch in an election law opinion from when he was a judge on the US Court of Appeals for the 10th Circuit, which oversees Colorado. Back then, Gorsuch wrote that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process…permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

  Ellie Mystal @ The Nation

Sadly, I have no confidence at all in Justice Gorsuch. He should have no problem contradicting himself.

Despite the fact that the text of the law, conservative ideology, and some of the justices’ own words are on the side of Colorado in this case, I fully expect the Republicans on the Supreme Court to ignore all that and restore Trump to the Colorado ballot. You see, the problem with beating conservatives at their own game is that they don’t care about their own rules. It’s easy for them to make up new rules that contradict the old ones, as they go along, because they are not bound by principle. They’re only concerned about power.

Bingo.

Perhaps they’ll say that the case is not “ripe”—which in legalese means that the case is not ready for the court to make a ruling on—because it deals only with the primary ballots and not the general election ballots. Perhaps they’ll say we’re “too close” to an election to follow the rules (they’ve done that before).

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Trump’s lawyer argued, and the Supreme Court could agree, that Section 3 requires a specific act of Congress before it can be enforced. That might be a cute way for the court to stand by their man and let Trump get back on the ballot, while pretending that it’s all Congress’s fault.

A very likely path, I think, for this court.

However they do it, I seriously doubt that they will stand on their textualist and states’ rights principles and allow Colorado to disqualify Trump from the ballot. Indeed, if they do, then lawsuits pending against Trump in many other states would suddenly take on new life. The Republicans on the Supreme Court don’t want that smoke.

The conservatives will likely kill this, quickly, in the next few weeks. They will look bad doing it, but they’re appointed for life and know that elected Democrats lack the will to police their conduct. The main upshot will likely be that the staff at Mar-a-Lago has to clean a lot of ketchup off the walls during this holiday season.

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There’s a chance that Gorsuch listens to himself. There’s a chance that Roberts’s political preferences are such that he understands the grave threat a second Trump presidency poses to the country and the Supreme Court’s own power. It’s a fool’s chance, but I choose to believe that there’s a chance that the law prevails over Trump.

Roberts might understand and even care, but that still leaves five others who don't care, even if they understand.

There is probably a universe out there where Trump is kicked off the ballot; it’s just unlikely that we’re lucky enough to live in that one.

Agreed.

They wouldn't even have to write "because".  They've been known to decide things on the shadow docket and not give any reasoning or accounting of their votes.

If Gorsuch doesn't want to simply contradict himself, he's going to have to make some claim as to why Trump isn't "constitutionally prohibited from assuming office," thereby negating (reversing?) the trial court's finding. Or just simply say he isn't.  I don't think Gorsuch will see any problem here.

UPDATE 10:11 pm:  And as sure as night follows day, MAGA threats of violence follow Trump rants against anyone involved in something that doesn't go his way.