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Trump’s Appeal to the Constitution’s “Unconstitutional” Insurrectionist Ban is DOA

Alex Constantine - January 8, 2024


By Alex Constantine

A pair of appeals to Colorado's decision to banish Trump from the state's primary ballot have been filed with the Supreme Court, one by the candidate and the other by the Colorado GOP. Trump's lawyers maintain that issues weighed in their client's appeal "are of exceptional importance." This is undoubtedly true of the case itself, but Trump's petition is a rhetorical poo-poo platter that makes no exceptional arguments whatsoever. It resembles a  undergraduate essay that avoids confronting the Constitution's disqualification clause head-on.

Constrained by the electoral calendar, the Supreme Court decided last week to select one of the petitions for consideration to simplify the appellate process. The GOP's filing at least offered the justices a thorny issue or two to mull over, but it has been shelved in favor of Trump's facile harangue. On any other day, they might have relished the opportunity to hear the more complex arguments of the GOP, but they settled on the candidate's, and it can't possibly hold up under judicial scrutiny and should summarily be shot down.

So why did they agree to hear Trump's appeal? If they were inclined to overturn the Colorado decision, would they rely on the weaker of two petitions to support their ruling? Probably not.

RELATED: "The NM County Commissioner Booted Out of Office by the Constitution’s Disqualification Clause"

There is, for example, the argument that the office of president isn't specified in the amendment. This point is begging to be slapped down and postscripted of indignant sarcasm. As Palm Beach State Attorney Dave Aronberg observes, "it doesn't make sense that the framers of the amendment would want to prevent insurrectionists from getting elected to Congress and other offices, but would be OK if an insurrectionist became president."

Another argument in Trump's "exceptional" petition is nonsensical: "The Colorado Supreme Court decision would unconstitutionally disenfranchise millions of voters in Colorado and likely be used as a template to disenfranchise tens of millions of voters nationwide." (Coming from a Republican, this argument is ironic. The party plies every form of voter suppression strategy it can muster, legal or not, to disenfranchise voters: nullification of the Voters' Rights Act, voter roll purges, gerrymandering, ID laws, criminal histories, and so on. Now the reigning MAGA "conservative" is wringing his hands over disenfranchised voters. Sad.)

The lower court acknowledged that it had a duty to "apply the law ... without being swayed by public reaction to the decisions." By the same token, the US Supreme Court has a responsibility to apply the injunction even if radicalized Republicans can't vote for a rabid insurrectionist with blood on his hands. It may occur to the originalists of the Supreme Court that the very intent of the law is the disenfranchisement of voters to preclude the election of a violently seditious candidate. Trump's argument is is simply a rephrasing of the statute, not a refutation.

The Colorado GOP's appeal is a slightly more challenging: "By excluding President Trump from the ballot, the Colorado Supreme Court engaged in an unprecedented disregard for the First Amendment right of political parties to select the candidates of their choice." Citizens United rears its ugly head. if a corporate campaign donation is a form of free speech, why not a political nomination? Here is the sort of complex Constitutional issue the Supreme Court is fond of bickering over. But the GOP's sophisticated Constitutional argument won't be resolved any time soon.

Instead, the justices have chosen the path of least resistance. This suggests that the Supreme Court is not inclined to seriously consider overturning the Colorado decision. The justices still have the option of rejecting it for procedural reasons, but the appeal itself is an empty pinYatta. The justices won't break a sweat ripping it to pieces with a few swats of their Constitutional clubs.


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