Why the Colorado ruling could well backfire

Brian YS Wong December 22, 2023 08:16

On December 19th, the Colorado Supreme Court voted by a 4-3 narrow majority to remove Donald Trump from the state’s 2024 ballot. Pending Trump’s appeal to the US Supreme Court, this ruling would be placed on hold until January 4th. The ruling by SCOTUS could in turn produce a verdict with national ramifications and implications – i.e. can Trump be disqualified from the 2024 race through the enactment of the 14th Amendment, of which section 3 which expressly states, “No person shall […] hold any office, civil or military, under the United States, [;…] who, having previously taken an oath […] as an officer of the United States […] to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Trump’s staunchest opponents, alongside a growing number of constitutional law experts with serious reservations about the demagogue’s past antics, argue that insurrect he indeed did in the run-up to January 6th 2021, as he sought to inflame tensions and cast unwarranted doubt over the legitimacy of the last Presidential Elections. Indeed, some would posit that his repeated calls upon his supporters to defend the supposed validity of the election were a thinly veiled attempt at thwarting the results of the democratic election that saw him booted out of the White House. Trump’s subsequent pressuring, lobbying, cajoling, and coercing of his political rivals and perceived enemies into ‘capitulating’ to his demands, are clear signs of abuses of the powers and privilege of his office. Now, I am no constitutional lawyer – and defer I must to experts who are perhaps more familiar and equipped to comment on this case.

Yet we can and should understand the ruling through the lenses of American political science. With 9 electors in total and a fairly Democrat-heavy recent track record (this former swing state last voted for a Republican candidate in 2004), some would argue that this ruling is trivial – that it is unlikely to make a substantive impact on the election, even if it were permitted to go through. This analysis, however, ignores the possible precedent this sets – especially if the Supreme Court were to judge either a) the validity of this ruling as applicable across the country, which is highly unlikely, given the 6-3 split between ‘Conservatives’ and ‘Liberals’ (in quotes due to the amorphousness and range in stances adopted by these Justices) – though some have suggested that even the more conservative members on SCOTUS are open to issuing a more expansive interpretation of Article 14 in order to keep Trump out; or b) that the matter belongs to the remit and prerogative of state courts, and as such individual states ought to be able to determine if Article 14 can indeed be invoked to strip Trump of his right to be placed on the ballot in each of the states.

On surface, this appears to be a significant hurdle – adding to the growing list of headwinds that Trump’s campaign must confront. Yet in practice, Trump could well find himself further emboldened and strengthened by a ruling that goes against his favour in early January. So long as SCOTUS falls short of option a) – and, indeed, especially if it opts for c) overturning the Colorado court’s ruling altogether – relatively few states with swing or Republican-controlled courts would opt for invoking the same Article. This is especially given the huge opprobrium and backlash that foreseeably will result from the Colorado ruling. Perhaps a smattering of states with Democrat-leaning or fervently pro-Democrat courts would also consider the move – yet doing so would come with significant political and optical costs for the justices in question.

Given this, the number of states where Trump will end up disqualified from the ballot is likely to be negligible – and these are unlikely to be the states that he will carry, if at all, in the upcoming election. The actual impact on the electoral college distribution of votes – and the resultant swing one way or another – is incredibly limited. On the other hand, what critics and opponents of Trump should not underestimate, is the rallying and galvanising effects this has on two key demographics – Trump’s supporters, and independents.

On Trump’s supporters, it is fair to say that either way they are likely to turn out to vote in droves. Whether he is disqualified in their state or another, does not have much bearing or significance in determining their turnout on the day. Yet there will indeed be a likely effect on how emboldened, vocal, and determined they are in engaging in non-electoral behaviours – e.g. rallies, protests, and even targeted violence (given Trump’s long-standing, ‘illustrious’ record of inciting hatred, looting, and uncivil disobedience) towards perceived enemies and opponents to the ‘MAGA movement’. The more Trump frames himself as a martyr and a victim of state persecution (through referring to the court rulings), the likelier it is that these individuals would feel disillusioned and alienated from existing state institutions, and opt for the abusive, transgressive behaviours that occurred on January 6th.

As for independents – who often make up their minds in accordance with incidental factors, such as social media portrayal, news coverage and issue salience, as well as personalistic elements that are candidate-dependent: whilst a ruling against Trump’s being on the ballot could go some way in ‘delegitimising’ the candidate in their eyes, it is equally – if not more – likely that the move would reify the Trump campaign’s narrative that he is an outsider, an independent, and someone who would stand against the system and ‘corrupt’ Establishment. In short, the move to disqualify would play right into his hands. Sympathy and support from independents may hence increase – as opposed to decline – in light of this very consideration.

In short, those who wish for a replication of the Colorado ruling elsewhere, should be careful of what they are wishing for.

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Brian YS Wong

Assistant Professor, HKU