For years, we’ve been told that Donald Trump is a worse-than-Hitler threat to democracy and that those who opposed him—leading Democrats, the courts, Noam Chomsky, Michael Avenatti, Rachel Maddow, the hosts of The View, even old Twitter—were just trying to protect it. It’s odd then to now be told that the best way to save democracy is by banning Trump from the ballot.
That’s what happened in Colorado yesterday, when the state’s Supreme Court ruled in a 4–3 decision that former president Donald Trump—currently the most popular presidential candidate—was disqualified from appearing on Colorado ballots for the 2024 presidential election.
The decision—perhaps the most extra-constitutional act by a high court in my lifetime—is astonishing on every level.
First, the reasoning:
The Colorado court did it by reinvigorating Section 3 of the Fourteenth Amendment, which reads in part that “no person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States” who has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Those words were written in 1866, less than a year after the Civil War ended, a war in which over 300,000 Union soldiers died to keep America united, in order to bar many former Confederate officials from serving in government.
January 6 was my third day in Congress. I had to be evacuated from the House chamber after a violent mob stormed the Capitol that day. I considered it then, and consider it now, a dark and shameful day. But no federal court has found, nor is the Justice Department even alleging, that Trump is guilty of anything close to insurrection or rebellion. And yet here is the highest court in an American state taking upon itself to conclude a violation of federal statute.
Second, the split:
The vote was not unanimous, but 4 to 3. As Washington Post columnist Jason Willick noticed, all of the Colorado Supreme Court justices are Democratic appointees, so what predicted their vote was not party, but law school. “All Ivy League grads voted to disqualify. All Denver Law grads voted not to disqualify.”
In a time when elite schools appear uniquely removed from reality, amid a political moment defined by elite failure, the irony is profound. Trump campaigns on “saving America” from elites seeking to thwart the will of the people. Those elites, in turn, respond by confirming Trump’s worst allegations.
Third, the consequences:
What is extraordinary today will be precedent tomorrow; past exceptions become today’s rule. Bending the law and loosening interpretations to force Trump’s accountability for January 6 into the legal realm will be far more damaging in the long term than whatever Trump’s opponents think they might prevent.
Broadening the Fourteenth Amendment understanding of insurrection from the horrendous bloodshed of a civil war or equivalent catastrophe will open the floodgates to tit-for-tat challenges. If Trump’s rhetorical culpability for January 6 qualifies, similar lawsuits against Democratic politicians who encouraged BLM rioters will swiftly follow. Was Kamala Harris giving “aid or comfort” when she fundraised bail money for rioters? You can imagine where this could go.
Political chaos is guaranteed if the Colorado ruling stands. That the Supreme Court will undoubtedly vote to overturn is cold comfort now that a state Supreme Court has sanctioned such corrosive folly.
You will be hard-pressed to find someone less disposed toward Trump than me.
I was one of ten House Republicans who voted to impeach him following January 6. I stand by that vote, despite the fact that it cost me reelection in Michigan after Democrats boosted my Trump-endorsed primary challenger. (Really.)
But as someone who believes Trump’s liability for January 6 is political, and that pursuing legal action against a former president must rest on an unshakable foundation, I must also stand against the mockery that this Colorado Supreme Court ruling represents.
One of Donald Trump’s greatest talents is his ability to make his opponents become the very thing they despise. In efforts to “protect democracy” from Trump, those who view Trump as a threat to democracy are defiling democratic norms in the process. At every turn, they reinforce the worst suspicions of the public that our system is rigged.
Last month, a parallel case—in which I filed an amicus brief—was rightly dismissed in Michigan on grounds it touched on a nonjusticiable political question. In other words, there was enough ambiguity in the law for the courts to leave this question to the political process to resolve, to let the voters decide. As I wrote in my brief, “our democracy relies on the ability of voters, not judges or partisan election officials, to determine their leaders.”
Instead, in a majority opinion sloppy in specifics and wrongheaded in the main, the Colorado Supreme Court has taken a Reconstruction-era prohibition on Confederate rebels holding office and used it to deny Colorado voters a choice of their preferred presidential candidate at the ballot box. As they themselves write: “we travel in uncharted territory.”
One would think such an admission would preface an appeal to caution; instead the Colorado Supreme Court proceeds to uncritically cite the landmark case of Schenck v. U.S., a 1919 case that upheld the Espionage Act conviction of an anti-war socialist for protesting the WWI draft. No matter that Schenck has been largely overturned in years since—turning back the clock to oppressive limits on free speech is a chilling reminder that we must never take the First Amendment for granted.
Nor, apparently, can we take for granted courts as a neutral arbiter. The Colorado Supreme Court ruling dismisses out of hand the defense that Section Three does not apply to the presidency by emphasizing “plain language,” while gliding over any distinction between Article II disqualifications, for which the Constitution offers no process for removal, and Section Three disqualifications, which can be removed by a two-thirds vote in Congress, as a tool of construction.
Progressive activists constantly harp that returning Trump to the presidency would spell the end of democracy, and they are willing to break every norm in order to defeat him. They are eager to warp definitions and shape reality to a statute that has blocked one individual, a county commissioner, from appearing on the ballot in 150 years.
They will do anything, it appears, to spare the country a second Trump term. Anything, that is, but endure the discomfort of replacing their aging and increasingly unelectable incumbent with a candidate who could defeat Donald Trump without judicial intervention.
Peter Meijer served as the U.S. representative for Michigan’s third congressional district from 2021 to 2023.
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