With the Colorado Supreme Court's move to strike Donald Trump from the GOP presidential primary ballot, other states with left-leaning power structures are joining the bandwagon. California's Lt. Gov. Eleni Kounalakis has issued directives seeking similar strategies, and it is certain that in the more than a dozen other states hoping to keep the former president off the ballot, a number of plots and schemes are being brewed. But is using the 14th Amendment to bar a political opponent on solid legal ground? Or is it just the groundwork for once again claiming that Trump is an "illegitimate president" should he prevail in 2024?
We spoke with Liberty Nation Legal Affairs Editor Scott D. Cosenza to examine the legal base of the claims and the potential outcomes of such a novel tactic.
Trump and the Ballot Dilemma
Donald Trump (Photo by Justin Sullivan/Getty Images)
Mark Angelides: Scott, I'd like to start by getting the basics out of the way here. Colorado's 4-3 decision rules that Donald Trump is banned from the GOP primary presidential ballot. Is that correct? And if so, what bearing does that have on the actual presidential election? Certainly, it could scupper his chances of winning the nomination, but the ruling doesn't affect the big show, does it?
Scott D. Cosenza: It's correct that Donald Trump can't be placed on the primary ballot, per the Colorado court ruling, unless he appeals to the US Supreme Court. Presumably, what's true for a primary would be true for a general election. Trump may not have a chance to win Colorado, but if any swing state removes him from the ballot, that may be the terminus of his presidential re-election aspirations.
MA: I'm seeing a lot of notable legal minds say that this use of the 14th Amendment is not only dangerous for the future soul of the nation but also on shaky legal ground. What's your interpretation?
SDC: Having read and re-read the relevant text (14 Amendment, Section 3), I cannot see how it applies to Donald Trump. It seems like the amendment's authors would have listed the "President" and "Vice-President" if they were to be included on the list of people covered under the prohibition. Then, there is the requirement that the person “engaged in insurrection or rebellion.” However, there has never been a trial on those charges. If it weren't happening, it would be preposterous.
MA: So, let's discuss what happens next. So far, Trump's legal team has not filed a response at the Supreme Court. In your opinion, what are the more likely responses on a sliding scale of probability?
SDC: There is a strong likelihood that Trump will appeal the Colorado case and the Supreme Court will take it up.
MA: If the US Supreme Court ends up ruling in Donald Trump's favor, would that stop the dozen or so cases against him in their tracks, or will they continue looking for novel approaches?
SDC: Mark, I think the people and organizations fighting Trump on ballot access or any number of fronts win for trying. By successfully demonizing Donald Trump to so many, they can claim a hero's virtue in fighting him, win or lose. From a market analysis perspective, we should expect those attempts to multiply and intensify because it worked!
MA: With that in mind, how soon after his potential win do House Democrats try to impeach him again?
SDC: It will be impeachment in perpetuity.
The People's Choice? Not Any More
MA: I hear the political left saying "Democracy is on the ballot" a lot; it's become the Biden campaign mantra in many ways. Those words are ringing a little hollower today with the Colorado decision, aren't they?
SDC: If only the people would make the right choices, they wouldn't have to be dictated to them. Maybe that's why they're bringing in such high numbers of reinforcements.
MA: Scott, in law, just about everything is precedent. Has the court set in motion something it, and America, may later regret?
SDC: The Colorado Supreme Court decision is only important precedent if the United States Supreme Court adopts it. State courts may be the final arbiter of issues arising from their state constitutions, but the US Supreme Court settles disputes over the federal constitution. Some Americans seem to be in favor of literally anything that damages Trump. This may be a win for them. If so, I predict it will be a sugar high with a costly hangover to the detriment of us all.
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