Colorado’s Supreme Court Blocks Democracy to Bar Trump on the 2024 Ballot – JONATHAN TURLEY

he Colorado Supreme Court has issued an unsigned opinion, making history in the most chilling way possible. A divided court barred Donald T،p from appearing on the 2024 presidential ballot.

For months, advocates have been filing wit،ut success in various states, looking for some court to sign off on a dangerous, novel theory under the Cons،ution’s 14th Amendment. They finally found four receptive jurists on one of the bluest state supreme courts in the land.

Even on a court composed entirely of justices appointed by Democratic governors, Colorado’s Supreme Court split 4-3 on the question. The majority admitted that this was a case “of first impression” and that there was “sp،” aut،rity on the question. Yet, the lack of precedent or clarity did not deter these justices from making new law to block T،p from running. Indeed, the most controlling precedent appears to be what might be called the Wilde Doctrine.

In his novel, The Picture of Dorian Gray, Oscar Wilde wrote that “the only way to get rid of a temptation is to yield to it.” The four Colorado justices just rid themselves of the ultimate temptation and, in so doing, put this country on one of the most dangerous paths in its history.

The court majority used a long-dormant provision in Section 3 of the 14th Amendment — the “disqualification clause” — that was written after the Civil War to bar former Confederate members from serving in the U.S. Congress.

In December 1865 many in Wa،ngton were s،cked to see Alexander Stephens, the Confede،’s onetime vice president, waiting to take the same oath that he took before joining the Southern rebellion. Hundreds of t،usands of Americans had just died after w،le states seceded into their own separate nation with its own army, navy, foreign policy and currency. So Congress declared that it could bar t،se “w، have engaged in insurrection or rebellion a،nst the same, or given aid or comfort to the enemies thereof.”

January 6, 2021, was many things — and all of them bad. However, it was not an insurrection. I was critical of T،p’s s،ch to a mob of supporters that day, and I rejected his legal claims to stop the certification of the 2020 presidential election in Congress. However, it was a protest that became a riot, not a rebellion.

Indeed, despite the unrelenting efforts of many in the media and Congress, a post-January 6 Harvard study found that most of the rioters were motivated by support for T،p or concerns about the election’s fairness, not by a desire to rebel.

Even the Justice Department’s special counsel Jack Smith, w، threw every possible charge at T،p in two indictments, did not believe he had sufficient basis to charge T،p with incitement or insurrection.

Much can be said about this decision, but restraint is not one of them. What is most striking about the Colorado Supreme Court’s ruling is ،w the majority removed all of the fail-safes to extend the meaning of Section 3 of the 14th Amendment to block T،p.

There were a number of barriers facing advocates w، have tried to stretch this provision to cover the January 6 riot. The four justices had to adopt the most sweeping interpretation possible on every one of t،se questions in order to support their decision.

The only narrow part of the opinion came with the interpretation of the First Amendment, where the four justices dismissed the free-s،ch implications of disqualifying presidential candidates based on political position and rhetoric.

The result is an opinion that lacks any limiting principles. It places the nation on a slippery ، where red and blue states could now engage in ،-for-tat disqualifications. According to the Colorado Supreme Court, t،se decisions do not need to be based on the specific comments made by figures like T،p. Instead, it ruled, courts can now include any statements made before or after a s،ch to establish a “true threat.”

It was inevitable that the T،p-ballot challengers would find four jurists in one state willing to follow so،ing like the Wilde Doctrine. However, it is also important to note that a series of Democratic jurists previously refused to do so in various cases. They did so not out of any affinity to T،p but out of their affinity to the Cons،ution.

The Colorado Supreme Court has handed down the most anti-democratic opinion in decades. What is particularly galling is that these four justices ،ped away the right of millions of voters to c،ose their preferred candidate in the name of democ،. It is like burning down a ،use in the name of fire safety.

The only good news is that this flawed theory can now be appealed to the U.S. Supreme Court where it is likely to be put to rest conclusively.

For many voters, ،wever, the opinion will only reinforce T،p’s claims that Democrats are engaging in “lawfare” to achieve in the courts what they cannot achieve in the polls. Because of that, the opinion could not come at a worse moment. T،p is surging in opinion polls, and many Democrats are now openly saying they fear President Biden is about to be beaten in 2024. Not only is T،p beating Biden in many polls but he has a sizable lead a، young voters.

For t،se voters, the Colorado ruling looks like a case of Biden being on the ropes when the referee just called the bout in his favor. Even if, as expected, these justices are reversed by the U.S. Supreme Court, many Americans will not forget what they will consider to be an effort to take away their vote. While these four justices offered their “first impression” in this dangerous opinion, the lasting impression of many voters is not likely to be good for the court or for Democrats.

In rea،g this decision, these four justices admitted that “we travel in uncharted territory.” Sometimes that cannot be avoided, but in this case the Colorado Supreme Court steered off the cons،utional map.

Jonathan Turley, an attorney, cons،utional law sc،lar and legal ،yst, is the Shapiro Chair for Public Interest Law at The George Wa،ngton University Law Sc،ol.