A remarkable ruling from the Colorado Supreme Court today — a 4-3 decision disqualifying Donald Trump from the state Republican primary ballot on the ground that Trump “engaged in insurrection” in violation of Section 3 of the 14th Amendment.

There’s lots to say about this opinion, but I’ll make only a few remarks tonight.

First, kudos to the plaintiffs’ lawyers and their team, particularly my friend Prof. Gerard Magliocca, perhaps the country’s leading expert on Section 3 of the 14th Amendment and an effective expert witness for the plaintiffs. This is unploughed ground. And they tilled it masterfully.

Second, although the decision was close in terms of the justices’ votes, one point about the reasoning from majority and dissenters leaps out. The majority agreed with the finding of the trial court that Trump did indeed “engage in insurrection” as those terms are used in the 14th Amendment. And no dissenter disagreed on that point. The three dissents are all about procedure. Justices Boatright and Bertenkoffer in effect argued that the Colorado statute under which the ballot challenge was brought, CRS 1-1-113, was either not intended for challenges of this kind (Bertenkoffer) or was procedurally insufficient for a question of this consequence and complexity (Boatright). Justice Samour maintained that only Congress can create a procedure for determining disqualification under Section 3.

In other words, one trial judge and four state supreme court justices expressly found that Trump did in fact engage in insurrection — that he tried to forcefully overthrow the government of the United States. And three other state supreme court justices silently assented to that finding.

Consider that for a moment. Consider further that a select committee of the House of Representatives arrived at the same conclusion. And that the full House of Representatives impeached Trump for inciting insurrection and seven Republican senators voted to convict him on that ground. And that a federal grand jury indicted Trump criminally for trying to obstruct the peaceful transition of power. And then consider, if you will, the fact that none of these epochal occurrences is likely to have any deleterious effect on Donald Trump’s overwhelming lead in the Republican presidential primary.

We are in terrifying times.

Third, it is no surprise whatever that the Colorado Supreme Court overruled the trial court’s finding that presidents are not covered by Section 3 because they do not “hold … any office under the United States.” That finding was so untenable in the first instance that, with all due respect to the trial judge, it is hard to avoid the impression that she ruled for Trump on that ground — after ruling against him on all the genuinely tough questions – because she didn’t fancy taking the heat for the momentous decision to disqualify Trump, but instead set the case up for the state supreme court to do exactly that by reversing her on the obviously wrong part of her opinion.

Fourth, this case is plainly bound for the US Supreme Court. They really can hardly avoid taking so momentous a case. My (sad) prediction is that the Colorado result will be reversed, but that the reversal will not challenge the Colorado holding that Trump engaged in insurrection.

SCOTUS faces a genuinely vexing problem here. On the one hand, despite the qvetching by Justice Boatright, the trial court record is extensive and thorough and establishes beyond serious cavil that Trump engaged in insurrection. And the Colorado Supreme Court’s majority opinion lays out the factual and legal support for that conclusion masterfully. Nonetheless, SCOTUS will be deeply unhappy with the fact that there is no uniform mechanism for addressing the disqualification question on a national basis. The idea that some states will address the Section 3 issue while others won’t touch it, and that those who do address it will quite probably arrive at different results will, I predict, seem intolerable to a majority of the Court.

Moreover, I can’t imagine that they will want to make a finding themselves on whether Trump engaged in insurrection and is thus disqualified from running for the presidency in every state, or from serving if he were elected. Nor do I easily see on what basis they could claim the authority to make such a ruling.

How they will channel their discomfort — whether by holding that only Congress can create a Section 3 enforcement mechanism, or by holding that the particular process adopted by Colorado was somehow procedurally deficient, or in some other way — I would not now attempt to predict. But I think they’ll find a way.

And thus, just was true when so much desperate hope was placed in Bob Mueller, those of us who think Trump is a danger to the Republic should not expect a deus ex machina to save us and must instead resign ourselves to beating him at the polls.

Frank Bowman