A TRUMP WIN IN COLORADO CASE WILL BE ANYTHING BUT VINDICATION

Drawing from Scotus Blog

The U.S. Supreme Court's skepticism about Colorado’s legal decision to keep former president Trump off the state’s Republican primary ballot should come as no surprise, but not for the reasons that many citizens think.  SCOTUS will likely avoid deciding the insurrectionist question, and its ruling to overturn the Colorado Supreme Court should neither be viewed as a vindication of Trump nor as a rejection of “the rule of law.”  It is possible to oppose Trump 100 percent but still understand the legal and political reasons for such a ruling. 

And when it comes, Trump opponents should neither be outraged nor see it as further evidence of judicial corruption in our highest court.

Volumes of evidence, including that presented by the January 6 committee, proves that Donald Trump and his minions attempted to undermine Joe Biden’s legitimate victory in the 2020 presidential contest.  And keen legal minds in both conservative and liberal circles have made a strong case that Trump engaged in actions tantamount to insurrection. Section 3 of the 14th amendment makes it clear that “[N]o person shall …hold any office… who, having previously taken an oath to support the Constitution, … shall have engaged in insurrection….”   The Colorado Supreme Court applied this language to the facts and conclusions of the lower court that heard the case and held that Trump must be disqualified from the ballot. But the U.S. Supreme Court is not likely to reach the issue of whether Trump engaged in insurrection. It will decide against Colorado for different reasons, most probably for technical ones that many laypersons will have difficulty understanding.

When the SCOTUS ruling overturning the Colorado decision arrives, it will be heralded by Trump sycophants as vindication that he is not an insurrectionist and merely a target of political prosecutions.   They will be wrong, and their celebration is likely to be short-lived.   Unless democracy is even more imperiled than we think, SCOTUS is likely to reject Trump’s claim that he is immune from prosecution, thereby increasing the possibility that one of the several criminal cases against him and his allies in Georgia and Florida will arrive on America’s doorstep before the election. And it is conceivable that a decision rejecting Trump’s immunity claim may be issued at the same time as the Colorado finding.

If SCOTUS tosses the Colorado case, it should be viewed in the overall context of Trump’s consistent failures within the legal system.  Courts have rejected the ex-President’s arguments in 62 legal cases in nine states where his allies contested election processes, vote counting, and the vote certification. This has obliterated Trumpworld’s claim that the election was “stolen.”   Juries in two separate civil cases awarded E. Jean Carroll almost $90 million after concluding Trump had sexually assaulted her and then defamed her in his public statements.  The state of New York beat Trump again in its successful civil fraud case against the Trump Organization, and the  $450 million in fines and penalties are unprecedented for cases of this kind.  

Trump still faces criminal prosecutions in New York on 34 charges of falsifying business records, in the state of Georgia with 18 co-conspirators for criminal offenses involving attempts to undermine the 2020 election, and in the D.C. and Florida federal courts, where special prosecutor Jack Smith is poised to prove Trump guilty of 44 charges involving both the 2020 election and his hiding of top secret classified documents. The ex-President’s credibility before judges and juries lies in tatters, and the only thing keeping him politically alive are the noxious fumes emanating from Fox News and conservative social media.

The Colorado case was a long shot from the start. The language of Section 3 of the 14th Amendment states that an insurrectionist should be disqualified from serving, but leaving such determinations to individual states would prove chaotic to the federal electoral process and further divide the country. While the burden of proving a candidate to be an insurrectionist is high, states might begin to bar candidates for other reasons linked more to party affiliations than criminal transgression.  We might then have a presidential election where major party nominees would not appear on numerous state ballots, thereby undermining the legitimacy of the winner, and notion of national representation. That is one reason why most other states, Maine being the only exception, have refused to join Colorado in denying Trump access to the ballot.  

Because election procedures differ between states, rationales used to allow Trump ballot access have not all been the same.   Nonetheless, complaints similar to Colorado’s have been dismissed in Minnesota, Nevada, Michigan, and Washington, and, where voters have challenged Trump’s eligibility by appealing to state Secretaries of State or election officials, they have been rebuffed, even in places like Massachusetts, Illinois, and Arizona, where those decisions are being made by Democrats.  There are many reasons why SCOTUS will throw out the Colorado case—and determining whether Trump is an insurrectionist will not be one of them.  The public will then be left to grapple with the ruling’s implications for the primaries and the national election.  

Ultimately, the decision about whether Trump is qualified to serve another term will be one the entire nation will make, and it will not be made in the courts, but instead at the ballot box.

Portions of this post were previously published in the Richmond Times Dispatch.

David J. Toscano is a practicing attorney in Charlottesville, Virginia, where he formerly served as Mayor.  He also served fourteen years in the Virginia House of Delegates, including seven as Democratic Leader.  He is the author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives, University of Virginia Press, 2021, and Bellwether: Virginia’s Political Transformation, 2006-2020, Hamilton Books, 2022.