What Have They Done?

By Noah Rothman

Wednesday, December 21, 2023

 

The only thing reassuring about the Colorado supreme court’s 4–3 decision disqualifying Donald Trump from appearing on the state’s presidential ballots is the horror it inspired. Trump fans, Trump critics, and Trump adversaries alike recoiled. Even if they didn’t look askance at the dubious legal rationale that prevailed in this court, the assault it represents on the civic compact proved too much for even some of Trump’s most indefatigable opponents to defend.

 

That’s a modest silver lining. It will prove no comfort as the decision’s political reverberations unfold. The sense that unelected functionaries and professional bureaucrats have dedicated themselves to the effort to steal from Republicans their agency by simply ruling Trump out of the political process isn’t exclusive only to the MAGA movement’s true believers. GOP voters across the Republican spectrum increasingly believe that, to one extent or another. They will expound on that concern to anyone willing to listen. Anyone would rebel against such an imperious intervention into affairs as intimate as their vote. Americans, in particular, are disinclined to just sit back and take that sort of peremptory imposition.

 

Even if this sentiment was just a heuristic that folks who don’t spend their free time reading charging documents used to navigate the criminal allegations against Trump, it’s an understandable (if wrong) cognitive shortcut. When it comes to the Colorado case, however, the allegation is well-founded. The logic to which Minnesota’s supreme court appealed when it rejected a similar effort to bar Trump from the ballot, citing the 14th Amendment’s restrictions on candidates who “engaged in” insurrection, is unassailable.

 

Even if Trump is “ineligible to hold office,” the court wrote in a four-page ruling (far less cumbersome than the 213-page monstrosity Colorado’s justices needed to explicate their thinking), there is “no statute that prohibits” a political party from placing him on the ballot. That court dismissed the case before reaching its merits. Even if they had gotten that far, it is unlikely that the ball would have bounced in the direction of Trump’s critics. The U.S. Senate had the opportunity to convict Trump on the charge that he was an active participant in the violence that unfolded on January 6, and it opted for acquittal. Quite unlike the special counsel’s charges against Trump in relation to his conduct leading up to that day’s violence, the efforts to disqualify Trump from state ballots really do represent “a do-over for a failed impeachment.”

 

The Colorado supreme court’s actions are of a piece with the bizarre spectacle municipal government officials make of themselves when they weigh in on matters well beyond their remits, like Israel’s war against Hamas. They engage in self-destructive overreach when they tear themselves apart over non-binding resolutions that serve only to soothe the addled consciences of mere aldermen, sacrificing no small measure of their own legitimacy in the process. Like their counterparts in America’s dark-blue city councils, the Colorado court must have a high opinion of itself that it would seek to alter the course of American history in such a brazen fashion.

 

This ruling, if it held, would affix an asterisk to 2024’s election results in the archives — a modest inconvenience compared to the constitutional crisis that would follow a general election in which the states field wildly divergent slates of candidates. We don’t have to dig deeply into history for examples of what that experiment produces. It’s fortunate that the Supreme Court is unlikely to look kindly upon Colorado’s wily maneuver. It’s unfortunate that the damage will be long done by the time the Court takes up the case.

 

When the Supreme Court overturns Colorado’s verdict, it will hand Trump the most indisputable evidence in favor of a claim he and his supporters have long argued. It will confirm that Trump was the victim of political persecution. Americans of good faith who have argued (myself included) that Trump brought his legal troubles down upon himself will have to concede at least some of that premise to the former president’s defenders.

 

By then, however, all the perverse incentives this decision is likely to inspire will have had their predictable effect. Republican voters will rally around the president and defend him as they would defend their own individual autonomy. That is, after all, what is in the balance. Republican elected officials — including his presidential-candidate rivals — will echo their voters’ concerns. The prudential arguments against nominating Trump to the presidency for a third time will be drowned out by equally weighty prudential concerns around giving a handful of robes a veto over a political party’s candidate-selection prerogatives.

 

Perhaps that, too, is a desirable outcome from the Colorado court’s perspective. Even if their verdict doesn’t withstand scrutiny upon review, it may well secure the former president’s renomination to the presidency. Democrats have made no secret of whom they’d prefer to go up against next November. Given the rank political considerations that contributed to this decision, we cannot rule out ignominious motivations like these. Maybe. Or maybe Colorado’s four justices weren’t doing much thinking at all. ‘Thoughtless’ is the best way to describe the decision and the consequences it will impose on us all.