Colorado Supreme Court Decision Against Trump Is Not Anti-Democratic
Arnold Schwarzenegger might have been a very good candidate for President of the United States. Yet he was not and is not eligible. Is that anti-democratic? I don’t think so. It might be undemocratic in a sense, but no one seemed to be bothered by it.
Similarly,
30 year olds can’t be president of the US.
Naturalized citizens can’t be president of the US.
Non-citizens of the US can’t be President of the US.
No one seems to think any of the above are problematically anti-democratic. I gather something that is anti-democratic would be something that worked against starting or maintaining a democracy. I take it something undemocratic, by contrast, is simply something not done democratically. All of the above are undemocratic, but not anti-democratic. Their being undemocratic, though, does not seem problematic.
The rules barring Schwarzenegger, 30 year olds, other naturalized citizens, and non-citizens from being president were not democratically decided (well, that would need some qualification, but I put it to the side) but are not rules that work against democracy. They are rules the founders thought necessary to balance democracy with other values—importantly, liberal values as well as the value of sustaining democracy.
I take it those who favor democracy also favor liberal values—we do not want to be able to democratically remove the property, speech, religious, or other liberal rights from any group of people. I take it those who favor democracy also want to sustain democracy—we do not want to be able to democratically end democracy.
Of course, things can be done undemocratically that would be bad. But merely claiming something is undemocratic is simply not sufficient to show that it is bad. (Nor, I think, is claiming something is anti-democratic, but that is not to the point here.)
So, what to make of the Colorado case ruling that Trump could not be on the ballot for president?
The fact is, that for the same reason a naturalized citizen, a non-citizen, and a 30 year old cannot be president, someone who has been found guilty of participating in an insurrection against the United States government cannot be president. I do not think that is anti-democratic or undemocratic in a way that is any more problematic than any of the above. It’s no worse of a limit to democracy than the ineligibility of my 14 year old to be president.
Some might say there is a problem because there is a question of fact. The other cases involve matters of fact; the current case is debatable. I don’t see how that is supposed to work. If the relevant court rules the person in question did take part in insurrection and if the law clearly states a person who takes part in an insurrection cannot be president, the case should be closed. Both of those conditionals have been satisfied in the Colorado case.
Someone might say a court decision ruling that a person took part in insurrection is undemocratic. We don’t, after all, vote on how to settle court cases. The judges’ decision is undemocratic in that rather straightforward way. I suppose people do think this today. It is a strange view, though—at least if it’s meant as a complaint, as I assume it would have to be if it’s a concern.
Does anyone think the people of Wisconsin or Ohio (or the whole of the United States) should have voted to determine the guilt of Jeffery Dahmer? Does anyone think we should have voted to determine the outcome of Bush v. Gore? Of course not. Guilt or innocence is not determined by democratic vote; many legal questions are similarly not well-suited to be determined by democratic vote. Issues of fact are factual or not; courts determine whether they are facts for legal purposes. Eligibility to be President is not determined by vote. The limits imposed by the constitution may be undemocratic, but not in anyway that is problematic.
Granted, the Colorado court that decided Trump took part in an insurrection may have made a mistake. Its decision is nonetheless binding in Colorado. Those that think otherwise should oppose findings of guilt in any criminal case in any court—or at least oppose the imposition of consequences (like prison sentences) in those cases. They don’t though. They should similarly not oppose the Colorado decision on this basis.
I’ll end with a prediction I made a week or so ago on FB: SCOTUS will either not hear or will uphold the Colorado decision. I’ll now add to that: I also think SCOTUS would uphold the decision in Maine (by their Secretary of State) to keep Trump off the ballot there and the decision in California (by their Secretary of State) to keep Trump on the ballot there.
Love the logic, Andrew. Enjoyable read!
As to the claim that the CO decision isn't somehow unacceptably undemocratic or isn't deeply illegitimate, I agree that in principle there is nothing unacceptable about clear eligibility conditions. However, what does pose a serious threat to our democratic system is vague or ambiguous eligibility conditions which allow judges to choose the result they want based on ideological biases.
Had the CO supreme court articulated both a plausible set of elements that must be proved to constitute insurrection and the standard they need to be proved to I'd be much more sympathetic. Unfortunately the CO test seems to basically boil down to "isn't it obvious".
They basically adopt, with minimal analysis, the standard from the district court that "an insurrection as used in Section Three is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States” which the CO supreme court later interprets/modifies with the single extra demand that the action be intended to block the peaceful transfer of power.
But that's a pretty absurd rule. On its face that includes Trump asking the police or secret service to **legally** use force to protect him from protestors blocking his path to the capital where he intends to ask Pence to refuse to count the votes. More broadly, nothing in their standard requires any significant nexus between the force and the transfer of power. Suppose Trump asked his mob to mug people and give him the money so he could bribe Pence. That's an insurrection??
And WTF does block the peaceful transfer of power even mean? Trump wasn't trying to make the transfer of power violent, he was trying to prevent it from happening at all and he no doubt preferred that occur peacefully. Are they understanding this to mean that any protests (say as in Bush v Gore) claiming an outcome is illegitimate become an insurrection the moment one person is violent?
I suspect they really mean any attempt to illegitimately wrest control of the presidency. But again what does that mean? Technically speaking, Trump's theory that Pence could throw the election to the house is ridiculous but there are plenty of ridiculous constitutional theories that get taken seriously such as the trillion dollar coin or even accepted as precedent by the court. Besides, it's arguably not actually the constitution Trump was trying to violate but the electoral count act. So does violating any law to retain power count? What if 2024 does get thrown to the house and the train that a bunch of democratic reps are on gets delayed and Biden tells Harris to ignore the statutory deadline and wait until everyone shows up. Is that enough? What if delivering a note to that effect requires pushing past republican protestors by 2 staffers (so public concerted violence)?
I'm not saying any of these situations are at all similar but at a minimum the court should specify the elements of insurrection so as to clearly exclude all these obvious cases where the word doesn't apply. And this is on top of the lack of clarity about whether the president is an officer at all, when did Trump form what intentions on Jan 6th, is this part of the amendment self-executing.
The problem is that, taken together in the heat of a political campaign, all this ambiguity makes it seem like judges aren't applying some settled rule in this case but rather making up a rule that accords with their desiered outcome. I'd give the court the benefit of the doubt had it at least articulated a clear rule to apply in future situations rather than effectively saying: c'mon it's clearly an insurrection.