Should there be a political price to pay for a president who refuses to engage in a peaceful transfer of power and incites a violent coup to stay in office?
Common sense says yes.
As does a majority vote of the Colorado supreme court. But since their stunning ruling this week that Donald Trump may not appear on their state’s primary ballot, many a lawyer and pundit is arguing otherwise.
They say, for example, that it’s not the role of a court but of the voters to decide a matter of such import. They don’t seem to recall that the voters did decide in 2020 when they elected Joe Biden, but that Trump refused to accept that decision and did everything in his power to reverse it.
Others allow that the constitution does provide that insurrection is disqualifying but they ponder whether Trump – without a legal conviction – really fits that definition. And in some cases, these critics twist themselves into verbal knots to express their doubt.
“I generally say that Trump attempted to secure an unelected second term in office,” wrote Jonathan Chait in New York magazine. “Insurrection,” he notes, may be useful shorthand for Trump’s role but it’s too imprecise to accomplish what the Colorado jurists say it does.
President Biden sounded sensible when asked by a reporter if Trump is an insurrectionist. “It’s self-evident … he certainly supported an insurrection. There’s no question about it. None. Zero.”
But even Biden, hardly a disinterested party, admits another obvious factor: the US supreme court will make the ultimate decision.
The smart money seems to be on the court’s ruling in Trump’s favor.
Elie Mystal, justice correspondent for the Nation, predicted that the highest court will overturn Colorado 8-1, that the opinion will be written by Chief Justice John Roberts and Justice Elena Kagan, and only Justice Ketanji Brown Jackson will dissent.
“John Roberts is probably standing outside Elena Kagan’s office like [actor John Cusack] with a jukebox right now,” Mystal quipped, alluding to the iconic pleading-for-attention scene in the 1989 movie Say Anything. “He needs her for cover for what he’s about to do … He’s playing a full 80s mixtape.”
Other anti-Trumpers remain more hopeful, for some plausible reasons. One is that that conservative justice Neil Gorsuch, before he rose to his current lofty position, once wrote that states may and should protect the integrity of the political process by keeping candidates off the ballot if they are “constitutionally prohibited from assuming office”.
I’m no constitutional lawyer but Trump’s post-election actions like inciting an insurrection and pushing a fake-electors scheme seem strong enough to fit that bill. But, of course, there are ways to justify the opposite.
“A serious and careful opinion that reaches a reasonable conclusion,” was how the UCLA law professor Rick Hasen characterized the Colorado ruling. But he noted that, whether on the merits or on doctrinal grounds, the supreme court certainly can find grounds to disagree.
Hasen calls it imperative that the court move quickly: “Voters need to know if the candidate they are supporting for president is eligible.” A later determination of eligibility, especially if it were to involve congressional Democrats, “would be tremendously destabilizing”.
For me, it comes down to this. Trump is an anti-democracy candidate, and his actions, over the past eight years, have proven that, time after time.
Too many Americans are so inured to his firehose of outrages that they don’t see as clearly as the Colorado jurists do that this man now should not be eligible for the leadership of the free world. Mainstream media’s horserace fixation, and rightwing media’s relentless propaganda, has made that blindness worse. (On Thursday morning, Fox News offered this mind-blowing chyron: “GOP leaders suggest removing Biden from red-state ballots over border crisis.”)
Even if the Colorado justices don’t prevail, I am grateful to them for stating some obvious truths: that Trump has gone far beyond the limits of what’s acceptable in a candidate for highest office. That the checks and balances of the branches of government exist for a reason. That Trump doesn’t have to be convicted of insurrection, though he may eventually be, to be disqualified via the 14th amendment of the US constitution.
After all he’s done – especially in the shocking wake of the 2020 election – Trump is clearly unfit for office.
Whatever the outcome, having that recognized by a well-respected state court is a victory for common sense and integrity.
Margaret Sullivan is a Guardian US columnist
