My (Likely Unpopular) Thoughts on the Colorado Supreme Court Ruling

This Ain’t Gonna Work The Way You Think It Is…

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Yesterday the left celebrated a victory. The Colorado Supreme Court ruled that Donald Trump was disqualified from appearing on the state’s presidential primary ballot.

I get it. I don’t want to see 45 become 47 either.

I can’t say I’m a person that learns far left. I can’t say I’m a person that leans far right. I’m a regular person with common sense and compassion. I believe in respect and equitable treatment for all people regardless of race, colour, gender, gender expression, sexual orientation, etc. I know for a fact, and yes, I said fact, that racism, homophobia, and transphobia exist and we need to do more to both denounce and eradicate them.

I know there’s an economic crisis out there and we need to find ways to help people while maintaining their dignity.

I’m also fairly fiscally conservative. I believe in balanced budgets and priority spending. And our priorities are messed up. We’re putting money in the wrong places and not investing in our future…our people.

I believe in free expression and speech. Unpopular ideas shouldn’t be “canceled” just because the majority isn’t on-side. Abolition was an unpopular idea. Giving women the right to vote was an unpopular idea. If those had been canceled, I’d be on a plantation somewhere serving up cornbread to some white guy.

We learn and we progress by letting the unpopular voices have their say. The good ones will gain traction and the bad ones will get their butts kicked off the playground.

I’m a political junkie with no island. And you may think I’m also a person with no dog in this fight. I’m not American. I don’t live in Colorado. And I have no legal expertise in the American legal system.

However, I AM going to have my say because I think what I have to say needs to be heard. First, I DO have a dog in the fight. I’m Canadian and even though I don’t get a vote south of the border, what you get, we get. It drifts north. If you don’t believe me, check out some Canadian news to see what I mean.

I say all this because I want you, the reader to understand that my words and my opinion are grounded in that perspective — a reasonable observer, who has as much distaste for “Big Orange” as most people I know and respect, but also has very serious political and legal concerns with the Colorada decision.

And, no, I’m not a US legal scholar. But I do have a very good understanding of legal and political basics. I have degrees in both and have practiced law in Canada (I don’t know, but it's all still in there). I understand how the common-law system works.

And in this case, the system made a huge mistake!

I’m not going to get into the nuts and bolts and all the boring legal details here because some of it doesn’t matter as far as the end result goes and because the minutia will make all but a handful of readers snore. We’ll hit the highlights and why I think this was a bad, bad, very bad decision.

Anderson v. Griswald 2023 Co 63 is a multi-issue, complex appeal from a decision made by a district court ruling in Denver. It spans 213 pages and 3 of the Justices of the Court dissented (didn’t agree with the ruling), including Chief Justice Boatright.

My review of the ruling shows a well-reasoned and sober review of fact and law by the court. Despite its exclusively Democratic composition (from my understanding), it’s pretty clear the Court went to great pains to come to a fair, unpartisan legal decision. I applaud them for that.

But, here are my problems.

First, the decision is stayed. Stayed means the ruling and its effects are held in abeyance.

The ruling here is on hold until January 4, the day before Colorado’s Election Officials have to certify ballots for the primary. And if the decision is appealed to the US Supreme Court before that date, well the stay “stays” in place until the outcome of the Supreme Court’s ruling.

…Therefore, to maintain the status quo pending any review by the U.S. Supreme Court, we stay our ruling until January 4, 2024 (the day before the Secretary’s deadline to certify the content of the presidential primary ballot). If review is sought in the Supreme Court before the stay expires on January 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court. (per Curium, paragraph 7)

What does that mean in practical terms? Glad you asked. It means that Big Orange will be on that ballot. If you think he won’t have an appeal crafted and filed before the court of last resort by that date, I got a whole lot of swamp land to sell you.

Secondly, and moving away from the legalities of the decision for a moment, this decision has done nothing but inflame the MAGA hats. They are fired up!

In this climate of identity politics, of polarized views and everyone taking a side, these folks have bought into a side, wholeheartedly. They see Trump as the everyman hero for anyone who feels disaffected, left out, and left behind. His fight is their fight and the more challenges that are tossed his way, the harder they dig in.

The problem is, when the challenge turns out to not work, it emboldens them. It gives them a profound feeling of victory and righteousness.

See, them lefties, they tried to stop him, they tried to stop us, but they failed. We’re gonna win, man, we’re gonna kick ass! It’s our turn!

They’re coming out to the polls in droves because they’re motivated and a bad court decision is going to throw gas on that fire. Know that. Understand that. If you’re not down with 45 take 2, it’s time for a different tactic.

Jazz your voters up. Remind them about women’s rights. Go to every freaking college and university you can. Get the young people out. Organize rides to the polls, cars, buses, whatever. Start now. You can’t fight a political problem legally. Legal problems are best fought in the legal arena. Political problems, which he is, need to be fought politically.

That was a practical point. But back to the decision. One of the most troubling points in it, for me, was that the court affirmed the lower court’s ruling that the events of January 6th were an insurrection and that Trump engaged in it:

…The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection.

…

…The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions. (per the Court, paragraph 4).

What they’re talking about is the fact that according to the 14th Amendment, an insurrectionist is ineligible for office:

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, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.

A lot of people are certain that Donald Trump indeed incited, at the very least an insurrection. And the lower court here found on “clear and convincing evidence” that he had been so involved. I’m not arguing that one way or another.

Here’s the problem with that. Courts have 3 standards of proof. One is a balance of probabilities, which is kinda more likely than not. On the other side is the criminal standard, proof beyond a reasonable doubt.

In the middle, something I didn’t see much in Canada, is “clear and convincing evidence.” That’s more than 51/49 probability and less than beyond a reasonable doubt.

There’s an indictment hanging over Trump’s head for his role in J6. He will have to answer for that. A court will rule, based on proof beyond a reasonable doubt. A criminal standard for a criminal offence.

That trial hasn’t happened yet.

So what the courts in Colorado did was effectively treat Trump as guilty before him being found guilty in a criminal court, on the criminal standard. That’s not a good precedent. We don’t need another, “not fair!”

Yes, he may well be factually guilty.

Yes, you may think the ends justify the means, especially if it keeps his orange butt off the ballot.

But as you see, it won’t.

And more than that, let’s look at the precedent. Is that what we’re doing now? Are we declaring people guilty before the legal system, imperfect, but the best we have, pronounces them so after due process and a trial?

Is that what we want? If you were accused of a crime, would you want that?

In the short term, it sounds very tempting. Block him and move on, right?

But, here’s the problem, and this is where the left gets it wrong and shouldn’t pop the cork on the bubbly just yet…

You can’t defend democracy but eroding democracy. Once the precedent is out there, it can be used and relied upon in subsequent cases.

Do you want to be denied due process? Do you want to be pronounced guilty before you’ve actually been pronounced guilty?

This is not an example we want to follow. When the shoe eventually falls to the other foot, this will bite us in the butt. It will be used against people working for equality. It will be used against people fighting against the ills of society.

When that shoe falls, who do you think this precedent, if allowed to stand, will affect? White insurrectionists? No. Because political tides shift and what’s used against them will be used for them.

This ruling, which will, in my opinion, fall on higher scrutiny, is no cause to celebrate for the left. This precedent, if permitted to stand, will be used against you down the line. You may or may not stop Orange Terror, the Sequel, but that short-term gain will become longer-term pain when the tide of sentiment shifts. As my late mother, who died on Christmas day 3 years ago always said, the chickens always come home to roost. This is NOT the chicken you want.

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