Justices Should Not Bar Trump from Election – Even If There Are Good Reasons To Do So

The Supreme Court of Colorado disqualified Donald Trump from appearing on the state’s primary ballot. That is politically damaging and unacceptable. But all has not been said and done.

There are very good arguments why Donald Trump is not qualified to be president of the United States. After losing the election in November 2020, he rode roughshod over the American rule of law and the foundational principle of democracy that those who lose must also accept the election results. He still clings to the lie that the election was stolen to this day.

Warnings that the U.S. could “sleepwalk” into a dictatorship if Trump were reelected, as conservative former congresswoman and two-time voter for Trump Liz Cheney, has declared, may be a little drastic, but the warnings are in no way unfounded. It remains an open question whether the institutions can withstand the pressure of a reelected President Trump and his opportunistic minions as well as they did in his first presidency.

Thus, one hopes that Americans will recognize the danger and choose another Republican candidate besides Trump as candidate for the next president. The fact that current polls do not at all indicate that is disturbing for people who think freely.

Legal Basis Is Extremely Controversial

Every commentator and citizen is welcome to think as they please. It is a different case with judges. They have a responsibility to the state and must consider the dramatic consequences that banning a presidential candidate from running could have—particularly when the candidate is leading in the Republican primaries by a large margin in current polls.

The close decision by the Supreme Court of Colorado on Tuesday, which decided to do precisely that, raises doubts that the judges have given the situation enough consideration.

This is especially the case because the legal basis for their decision is anything but straightforward. The Colorado decision makes its reasoning clear, however. First, the opinion is based on Section 3 of the Fourteenth Amendment, which was passed in 1868 and has never been applied as it was here. Section 3 was drafted to prevent leading secessionists from occupying high federal posts but not explicitly to reign in rebellious presidential candidates. The court thus admits that it is in uncharted judicial waters with its ruling.

Second, a court has not ruled that Trump did, in fact, participate in an insurrection with the storming of the Capitol on Jan. 6, 2021. Despite clear indications that he tried to stay in office after losing the election, in violation of the constitutional principle governing the transition of power, the assertion that Trump knowingly participated in an insurrection is very difficult to prove. Special Counsel Jack Smith thus refrained from including this charge in his case against Trump. However, the Colorado justices see Trump as an insurrectionist, based primarily on the report of a House of Representatives’ investigative committee that was rejected by most Republicans.

Deepened Political Polarization

Of course, the small state of Colorado cannot prevent Trump from becoming president. Even if his nomination is prohibited there by the ruling, it would have little real meaning because Colorado usually votes Democratic anyway. Politically, the court’s foray into the election has two main effects. It causes partisan resentment, especially because all seven justices were appointed by Democratic governors. It also supports Trump’s claim that the courts are conducting a witch hunt against him.

The Supreme Court of Colorado recognized the limitations of its decision and deferred the ruling until the U.S. Supreme Court can consider any appeal. The U.S. Supreme Court normally does not directly intervene in a state court decision, but because of the political significance of the case, the High Court will most likely also take up the question directly if appealed of whether Trump can be prohibited from running in the Republican primary in Colorado. Other states are debating the issue, and a Supreme Court ruling could thus have a nationwide impact.

The nine U.S. Supreme Court justices are not in an enviable position. The only correct decision from a political perspective is to refrain from banning Trump. The American people, not a court, must decide whether it wants to trust someone like Trump to lead the nation. Any other decision would justifiably be perceived as an intervention by the elite in a country whose constitution does not even prevent someone who has been convicted in a court of law and sent to jail from being elected president. The American judicial system’s reputation would suffer, and political stability in the country would be further undermined. Banning Trump from running would just enhance his attraction among his fans as a self-proclaimed challenger to the “establishment.”

The situation is even more explosive because six of the nine U.S. Supreme Court justices, a clear majority, were appointed by a Republican president, three of them by Trump himself. If they reject the Colorado ruling, which would be the correct decision, they will invite partisan resentment from the opposition. Deepening polarization is already pre-programmed. It would have been better to avoid a situation like this.