Why is the Colorado Supreme Court’s decision significant?
John Fea: It’s a surprise. I don’t think we’ve ever seen a decision like this in American history. What’s significant is how it’s going to play out in the Supreme Court, because Trump has said that’s what he would ask. Essentially, the Supreme Court will have to make a decision on the 3e article from 14e amendment of the Constitution. She will formalize this part of the 14e amendment, namely that Trump is an insurrectionist. We’ll see what they do. What Colorado just told the nation is that Trump is an insurrectionist, so he is disqualified.
Why did this case linked to an American presidential election end up before a State Court and not directly to the Supreme Court of the United States?
Stéphane Beaulac: At first glance, this seems to be a question falling under federal authority. But even if we are in a question linked to the presidency of the United States, the election procedures do not fall under a centralized authority, but at each of the 50 states. In other words, the American electoral process is decentralized, even for the federal election. The issue before the Colorado Supreme Court could be heard in all 50 US states. In fact, the same issue has come to the attention of courts in Minnesota and Michigan. The applicants were dismissed at first instance. Lawsuits were also filed (unsuccessfully) in New Hampshire.1
What will the Supreme Court justices look at? And will the decision be applicable to all states? Or just in Colorado?
Stéphane Beaulac: The judges will wonder if this question is not more of a political nature. This article 3 does not relate to an objectively verifiable qualification, such as the minimum age requirement (35 years) for candidates. It concerns the question of whether there was participation by an “officer” in insurgent activity, and that the courts would not be empowered to judge that. In short, it should not be a question linked to the qualification of candidates in the same way as other qualification bases. Therefore, Article 3 is an eminently political question which should not be the subject of judicial determination. And therefore, it is not up to a court of law to decide.
John Fea: A possible Supreme Court decision would apply to the entire nation. For example, I can’t imagine that the Supreme Court can decide that Colorado was right to ban Trump, but that other states can decide whatever they want. When the Supreme Court makes a decision, it applies to the entire nation.
What are the political implications of the judgment?
John Fea: This decision is telling. Trump’s Republican rivals could have taken advantage of this to isolate Trump, and claim that he was responsible for the January 6 assault. None have taken this route yet. Rather, they are of the opinion that it is not for the court to decide, but for the voters. They don’t say anything negative about Trump because they need to attract Trump voters. Also, many perhaps see themselves as his next running mate, and therefore do not want to anger him and risk not being chosen.
Will Trump become more popular because of this decision?
John Fea: Every time Trump gets in trouble, every time he gets sued civilly or criminally, his base supports him even more. It maintains the idea that, like them, he is fighting against the system. He’s playing the victim, and that helps him. Trump even launched a fundraiser highlighting the Colorado Supreme Court’s decision.
1. According to the specialized site Lawfare, similar lawsuits are underway or have been appealed in 15 American states, excluding Colorado.