The Colorado Supreme Court delivered a December surprise Tuesday with its ruling barring former President Trump from the GOP primary ballot in the state.
The justices, by a 4-3 margin, ruled that Trump had engaged in insurrection in relation to the Capitol riot of Jan. 6, 2021. They further contended that this disqualifies him from office under the 14th Amendment of the Constitution, which includes a prohibition on those who “engaged in insurrection or rebellion.”
Trump allies have made clear they will appeal to the Supreme Court.
Given the narrowness of the verdict in Colorado, where all seven justices were chosen by past or present Democratic governors, many people expect the Supreme Court to overturn the decision.
The Supreme Court has a 6-3 conservative majority, and three of those conservatives — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by Trump himself.
The likelihood of a Supreme Court decision in Trump’s favor is just one of several factors suggesting that the political impact on the former president may be limited.
It’s entirely plausible he could wring political advantage from his apparent setback in Colorado, just as he has done from the four indictments with which he has been hit this year.
Despite those indictments, totaling 91 charges, Trump’s polling lead in the GOP primary has only expanded.
The first indictment of Trump — relating primarily to hush money payments to adult actress Stormy Daniels — was announced on April 4 by Manhattan District Attorney Alvin Bragg (D). The previous day, the former president had a lead of 25 points in the national polling average maintained by data site FiveThirtyEight.
On Wednesday — four indictments later — his lead was 49 points.
To be sure, there are other factors that have contributed to Trump’s growing dominance in the primary, especially the underwhelming campaign of his erstwhile main rival, Florida Gov. Ron DeSantis. But the overall trajectory of the race proves how little Trump has been hampered by his legal woes.
The courtroom dramas have also put Trump’s chief GOP competitors in a difficult spot.
Setting aside the fiercely anti-Trump former New Jersey Gov. Chris Christie, Trump’s rivals have tended to endorse his underlying preferred narrative — that he is the victim of a politicized justice system — even as they continue to insist that they would be a better president.
It is hard to make that argument work, in part because it bolsters Trump’s sense of victimhood, which is widely shared among his supporters. At a more basic level, these moments of drama train the spotlight on Trump, marginalizing his rivals.
This is an especially acute problem now. The non-Trump GOP candidates need a game-changer with less than a month to go before the Iowa caucuses.
In the hours after the ruling, DeSantis wrote on social media, without naming Trump, that “The Left” was “abusing judicial power” in order to remove a candidate from the ballot.
The Florida governor claimed this was being done “on spurious legal grounds” and that the Supreme Court should reverse the Colorado ruling.
On Wednesday, DeSantis took a slightly different tack. He called the Colorado ruling part of a pattern of “stunts” from the media and the left intended to “solidify support” for Trump, on the basis that the former president is purportedly more beatable in a general election.
Former United Nations Ambassador Nikki Haley, who is breathing down DeSantis’s neck in the battle for second place, on Tuesday reiterated her belief that she is a better candidate than Trump. But Haley also told reporters, “We don’t need to have judges making these decisions. We need voters to make these decisions.”
Christie took a similar line, contending that it wasn’t up to the courts to stop Trump from becoming president again. “He should be prevented from being President of the United States by the voters of this country.”
None of those arguments seems likely to narrow Trump’s lead in the primary, however.
The bigger question is whether the legal hit Trump has sustained could harm his standing with the independent voters upon whom the fate of the general election might well hinge.
On one hand, the parallel with the indictments still holds an optimistic message for Trump.
Despite the criminal charges against the former president, he now appears to be a slight favorite to defeat President Biden if the two men once again face off next November. The former president leads Biden by roughly 2 points in the polling average maintained by The Hill and Decision Desk HQ.
On the other hand, vast swathes of the nation roll their eyes at Trump’s claims of being the victim of a witch hunt — and they may see the Colorado ruling as strengthening the broader case against him.
A Politico/Morning Consult poll in late September found 51 percent of registered voters believed the 14th Amendment’s prohibition on insurrectionists holding office meant that Trump should be kept off the ballot. Just 34 percent disagreed with that proposition.
Biden is treading carefully around the court case while also seeking to use the underlying facts to support his argument that Trump is a danger to democracy.
On Wednesday, Biden told reporters: “Whether the 14th Amendment applies, I’ll let the court make that decision. But he certainly supported an insurrection. No question about it. None. Zero.”
Millions of American will agree with Biden.
But the former president’s capacity to turn historic setbacks to his advantage can never be underestimated.
The Memo is a reported column by Niall Stanage.