I’ve been predicting for a while that the 14th Amendment Disqualification Clause case that will eventually go before the Supreme Court would come out of Colorado, and with a Colorado Supreme Court split decision in Anderson et al v. Griswold yesterday, it looks like those wheels are in motion.
Another prediction: Trump’s name ultimately will appear on the Colorado primary ballot, and very likely on general election ballots as well. This is because the odds were stacked so strongly in his favor from the start, and because the currently constituted Supreme Court is such a favorable venue for him.
I have a metaphor that may help readers understand the issues at play in Disqualification Clause cases…
The Six Traffic Lights
Imagine the petitioners in the DQ case are driving on a road with six intersections in front of them and a traffic light at each intersection. If their car is stopped at a red light, they will not be able to proceed to their intended destination. If they arrive at a yellow light, they will have to wait until the light turns either red or green.
To get a Trump disqualification, er, to reach their destination, they need all six lights to be green. Trump will be disqualified only if all the lights are green and he remains qualified for the ballot if any single light is red.
Technically, the first challenge is getting the car onto the street. The Arizona plaintiff in Castro v. Fontes, a Republican presidential candidate, was ruled to not have standing to bring a disqualification case because his campaign didn’t have a chance of winning no matter who he was running against. Ouch.
The first light is at the intersection of Justiciability Street. This light turns red if a court refuses to hear the Disqualification Clause case without a prior ruling from Congress. This was where the Minnesota petitioners’ journey in Growe et al. v. Simon came to an end because there’s no chance for a Trump disqualification resolution to pass through our currently constituted Congress.
The second light is at the intersection of Ripeness Street. This light turns yellow if a court decides the Disqualification Clause doesn’t apply to primary elections but still might apply to the General Election. This happened to the Michigan petitioners in LaBrant v. Benson, who are currently waiting at a yellow light that will turn green if Trump is the nominee chosen by the Republican National Convention. If Trump is not the Republican nominee, does not run as a third-party candidate, and ends his campaign, the yellow light will turn red as the issue becomes moot.
So far, only the petitioners in Colorado have gotten a green light at this intersection but cars in Michigan and other states are waiting at a yellow.
The third light is at the intersection of Insurrection Street. This light turns red if a court decides the events surrounding Jan 6 do not constitute an insurrection under Section 3 of the 14th Amendment. Courts don’t have a precedent to go by here, so must create a new standard and justify it under the law. The Colorado petitioners, in the only car to reach this intersection so far, got a green light from Judge Sarah B. Wallace at the district court level. Trump appealed, trying to turn this light from green to red, but the green light was affirmed by the Colorado Supreme Court’s majority opinion.
The fourth light is at the intersection of Participation Street. This light turns red if a court decides that Trump’s actions on and before the insurrection don’t meet the definition of participation under Section 3 of the 14th Amendment. Again, there was no precedent, and again, Judge Wallace set a green light that was affirmed by the Colorado Supreme Court majority.
The fifth light is at the intersection of Oath Street. This light turns red if a court decides the presidential oath does not fall under the oaths required to invoke the Disqualification Clause. At the district court level, Judge Wallace put up a red light that the petitioners appealed. The Colorado Supreme Court majority turned this red light to green.
The sixth light is at the intersection of Officer Street. This light turns red if a court decides the presidency is not an office under the United States, as envisioned by the framers of the 14th Amendment. Judge Wallace had put a red light at this intersection as well, which was also turned green by the Colorado Supreme Court majority.
What It Means
The Judge Wallace’s district court was the first to rule on all six lights. The petitioners needed six green lights but got only four plus two reds. They appealed the red lights, looking to turn them green, while Trump appealed the green lights, looking to turn them red.
All the lights at the Colorado Supreme Court are green, but the case is stayed until January 4th pending anticipated appeals. Because it’s so certain that Trump will appeal to the U.S. Supreme Court (SCOTUS), and so certain that SCOTUS will take up the case, it would be pointless for the Colorado court to order the Colorado Secretary of State to remove Trump from the ballot until a final resolution.
In my opinion, in an ethical court interested in avoiding the appearance of personal bias, the three justices appointed by Trump would recuse themselves from the case and Justice Clarence Thomas would recuse himself from, at bare minimum, deliberations about the green light at Insurrection Street, as his wife is well known to have participated in the events of Jan 6. But that level of ethics is probably beyond the SCOTUS we have.
If the right-leaning SCOTUS, packed with Trump appointees, turns even one of those six green lights red, that will create a universal precedent and all pending Disqualification Clause cases will fail.
So while I personally agree with the Colorado Supreme Court ruling, I don’t expect it to stand for very long.