Why did Colorado kick Donald Trump off the ballot?
2023-12-20 00:14:54
Every Friday, Guardian columnist and former Washington correspondent, Jonathan Freedland, invites experts to help analyse the latest in American politics. From politicians to journalists covering the White House and beyond, Jonathan and his guests give listeners behind the scenes access to how the American political machine works.
This is The Guardian.
In a shock decision overnight, the Colorado Supreme Court ruled that Donald Trump is ineligible to run for the White House again in that state.
The Colorado Supreme Court ruled that Donald Trump is disqualified from holding office again because they say he engaged in an insurrection.
In a 4-3 ruling, the justices in Colorado cited a rarely used provision of the United States Constitution, arguing that Trump should be disqualified. His name removed from the ballot for his role in the January 6th attack on the Capitol.
In a statement, Trump's election campaign team called the decision completely flawed, arguing it was a decision by Democrats trying to remove the strongest candidate from the 2024 presidential race.
But what does it all mean? Will this historic decision actually prevent Trump from running, or, like most hurdles that the Republican frontrunner faces, will it just bolster his appeal? I'm Jonathan Friedland, columnist at The Guardian, and this is a special episode of Politics Weekly America.
There are various counts, he's kind of facing so various criminal indictments.
Tavika Batt is the deputy head of international news at The Guardian.
And now this, which even by the standards we've seen regarding Donald Trump, feels like a bit of a bombshell.
It does so. Let's just get straight to it then, and the nub of what has just happened. What did the Supreme Court of Colorado decide late on Tuesday night?
So the Supreme Court of Colorado decided that Trump cannot run for president in that state because he engaged in insurrection. Which under this, as you say, sort of rather little known provision in the U.
S. Constitution, Section 3 of the 14th Amendment.
It bars certain people from holding office if they engaged in insurrection or rebellion, or given aid or comfort to the enemies thereof.
And they determined that this applies to the presidency, and therefore he is disqualified.
So the Colorado Court saying that Trump is in effect guilty of those things, whether engaging in insurrection or giving aid or comfort to those people, I suppose, who did? And the decision, as they put it, was to say President Trump did not really incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it. These actions constituted overt, voluntary and direct participation in the insurrection, so those were their grounds.
I mean, do you have a good sense of how? They concluded that? Because other courts have not come to exactly that view?
This was a reversal of a lower court's ruling in Colorado itself, so a Denver court's ruling last month that found that. Actually, what Trump did, his behavior was did constitute insurrection, but that he wasn't culpable for it. Because it didn't apply to the presidency, so this clause, this insurrection clause, does not apply to the presidency, it applies to other federal offices, but not the presidency. Whereas the Colorado Supreme Court disagreed with that and said it does apply to the presidency.
Yeah, and you can see why there is this disagreement, because it's an odd thing. This section 3, because it does spell out the jobs that you will be disqualified from it, says. Senator, Representative in Congress, elector of President and vice president, meaning the members of the Electoral College, or hold any office, civil or military under the United States. But some people think the fact it doesn't specifically spell out President of the United States may be deliberate. And maybe the people who frame that bit of the constitution were deliberately exempting the president. Others say people just couldn't imagine, when they wrote it, that there would be a president who would have engaged in insurrection or giving aid or comfort.
I suppose this is just one more example of how Donald Trump is somebody who just exists, you know, literally outside the rulebook. To the point where he did things and has done things that people just couldn't even have imagined.
I think that's exactly right, and I think I suspect his campaign will sort of try to use that to their advantage. You know, they will say he is exactly that. He is above this. And this is another attempt to enforce elite driven, arcane rules to him, and they shouldn't apply to him. Which is sort of what we've seen his campaign do before.
They want to silence me because I will never let them silence you, and in the end, they're not after me, they're after you. Yeah, no, that is exactly I think the script they've been following. The initial reaction from Team Trump was to denounce the ruling.
They sent out a campaign email which called it tyrannical. And they've said they're going to appeal the decision, which would send it straight away to the U.S Supreme Court. And also, it's only any way applies to Trump running in the Republican primary in Colorado. We're not yet at the point of talking about the general election for November 2024..
For all those reasons, it's not quite a sort of done deal, this is it.
No, not at all. I think that's exactly right. So the Republican primary in Colorado is on the 5th of March. And the sort of timeline now, as we understand it, is that this decision is actually sort of on hold. This ruling is on hold until January, the 4th, by which time Trump's people need to submit an appeal.
And they've already signaled their intention to do so, as you said, and so presuming that appeal is submitted by January, the 4th. The Supreme Court has to then decide whether it's going to take up the case, and that will take time in of itself, even before any case is then debated. So it's a long, ongoing thing. We've seen this with other Supreme Court decisions.
It's not a kind of straightforward, instant process. Whether they'll decide to take it up before the 5th of March, before the Republican primary, or after, it's not really clear yet. But, you know, you'd imagine there'd be quite a lot of pressure to do it before. So it'll be interesting to see how that plays out at the start of next year.
I've seen some of the legal commentary saying this will. The Supreme Court are bound to take it because this is one of those decisions of national import. Because it could set a precedent by which, you know, theoretically, Trump would be removed from the ballot in all 50 states. So it's definitely significant enough for them to take it. But I have to admit, my own immediate reaction was obviously they're going to find in favour of Trump. Because it's a six to three court now, you know, favouring the sort of conservative view. Six of the nine judges appointed by Republicans, and three of those six were appointed by Trump himself. Am I Tavika being too cynical to just assume? It's absolutely a foregone conclusion that this Supreme Court will throw out the Colorado's decision and allow Trump's candidacy to go ahead.
I think all the evidence points in that direction. The Supreme Court is meant to judge the merit of things on a legal basis. But we have seen that, you know, it's very politically motivated, and, as you say right now, it's very verily weighted in favour of conservatives. Three of the people on that court literally owe their jobs to Trump himself.
So it is hard to see how they would stand by this decision from Colorado. And you know, there is precedence for other in other states where cases have been, where advocacy groups have tried to put forward cases under this particular insurrection clause, and they've failed.
There have been three similar cases involving former President Trump and an attempt to keep him off of the primary ballots. And so far, other cases have ruled in Trump's favour and he has stayed on the ballot. That includes Michigan and Minnesota as well.
So there's a whole slew of kind of legal arguments already which the Supreme Court could use and draw upon. And say, well, actually, they got it right and you got it wrong. So it feels like, you know? On balance, that's the way it would be more likely to go. And if I were putting money on it, that's definitely the way I would go too.
Yeah, no, me the same, I mean. It's partly because there are all these different questions that they can tackle. And so they don't have to say. Trump's a great guy. He must be allowed to stand. There are all these different legal areas where they can say, you know, it wasn't technically an insurrection on January the 6th.
Or Trump, whilst making some noises in speeches, doesn't formally count as giving aid and comfort. To use the language of the constitutional section. Or to say, Look, you know, those courts didn't have the authority to enforce Section 3 because Congress hadn't done it. This is a decision for Congress. And then, of course, this other one, this exemption that they could read into it, saying that the presidency is exempted from this rule. So there's plenty of scope, if the Supreme Court, if those six judges in particular, want to find, as it were in favour of Trump. I mean, putting it all together, and I do feel one way or another. As if we've asked this on the podcast quite often. Does this move by, you know, in the legal system, make any difference for the Trump core constituency, those voters in how they see him, whether they'd be minded to vote for him?
Does it move the needle at all? First of all, for those people, the Trump faithful.
I think it only adds weight to their perception that Trump is being unfairly pursued by an elite that doesn't understand what a popular person he is. With the mass electorate, I think, yeah, for those voters, I think this will just, you know, it's further ammunition for that, I guess. The broader question is whether, when we come to the more general electorate, the undecided voters, the swing voters. Whether this, and you know, this, I think, probably applies to all the other legal cases that we've mentioned as well. Is it enough for people to say, actually, this is really kind of? This is unprecedented, in a really, really negative way, and this is something we don't want part of. Or whether they will side with those core voters and think, well, actually. There is a campaign to get him. That's being driven from Washington, from the political elite, and we want to protest against that.
Yes, I mean, I'm just thinking, there are some people who think if. Chris Christie governor, former governor of New Jersey, has been saying that if he is convicted on a federal felony charge, then there will be a whole lot of independent voters who at that point break away and couldn't support Trump, you know, instinctively. I don't think this thing is in that category. Because it will play to that narrative of, you know, fairness, that he's being removed from the ballot, he doesn't even have the right to stand. That suggests this is a stitch up by the Washington elite, etc. I think that does play to Trump's narrative. Especially the fact that those four Supreme Court judges in the Colorado Supreme Court were all Democratic appointees, appointees of Democrats. And so you can just imagine that narrative, so I'm sort of with you on that.
I think it's a different test than you know, the question of if he's convicted of an actual crime. Let's just imagine, though, that somehow the Colorado initiative stays and is upheld, and he doesn't appear on the ballot, but somehow wins in November. I mean, you could have a very strange situation, couldn't you? Where Colorado actually sort of legally can say Donald Trump is not our.
President Yes, I mean, and that could happen. And we know, you know, from U.S. history, there is states. Individual states can exercise their rights in quite extraordinary ways, and that that has happened before. Whoever wins, wins the presidency is the person who has the most electoral votes.
I mean, right now, as things stand, Colorado, in of itself, is sort of weighing quite heavily in favor of the Democrats. So it doesn't. I don't think Trump's counting on it anyway from that point of view. But you know, if, yeah? If there was a situation where he were to win the most electoral votes, he would be president of the whole country. But yeah, I mean, you can imagine a world in which there would be a campaign for the state to not accept it. I mean, you know, everything about Trump feels it feels like we use the word unprecedented a lot. But we would really be in a really kind of new state of play then.
We really would. And actually, the word is not inappropriate for this situation. Because there hasn't been a president who has been on the wrong end of this measure ever before. That is something new. But I'm just listening to what you were saying there about how that. Colorado would be in, potentially, you know, at odds with the decision of the rest of the country. It's a reminder that this measure that has seen him being deemed disqualified from the ballot, Section three of the 14th Amendment. It owes its origins to the civil war, in which the victorious side wanted to ensure that nobody from the confederacy could hold office afterwards.
You know, civil wars and America being hugely divided, it's there deeply in the history of the country, and, you know, a reminder of how deep those divisions do run.
I think that's right. And I think there's something really kind of slightly worryingly and sadly opposite about the fact that this clause was, you know, enacted to stop Confederates from returning to power. There feels something quite appropriate, in a scary way, about that.
It definitely does. Devika Bhatt, Thanks so much for joining me for our emergency update episode of Politics Weekly America.
Thank you for having me.
And that is all from me. For now, we're taking a break for the next couple of weeks, so we're revisiting some of our favourite episodes of the year. But we will be back and ready for 2024 and all the madness it brings with a fresh new episode on January the 5th. So do make sure to join us for that.
But for now, it's goodbye. The producer is Daniel Stevens, the executive producer, Maz Ebtehaj. I'm Jonathan Friedland. Thanks as always for listening.
This is The Guardian.
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