Does kicking a popular candidate off the electoral ballot protect democracy? Or is that in fact deeply anti-democratic?

These are the questions that many Americans are pondering today after Colorado’s Supreme Court voted four to three to block Donald Trump from running in its state in the election next year, citing the insurrection clause in the 14th Amendment of the US Constitution.

The ruling is a clear attempt to establish that Trump, by ‘inciting an insurrection’ on January 6, is persona non grata in American elections

The court’s decision refers only to Colorado’s primary on March 5. But, if upheld, the ruling would almost certainly apply to the presidential election on November 5.

Donald Trump is probably not going to win in Colorado — he lost comfortably in the state to Hillary Clinton in 2016 and to Joe Biden in 2020 — but that’s not the point. The ruling is a clear attempt to establish that Trump, by ‘inciting an insurrection’ on January 6, is persona non grata in American elections according to the Constitution. It could be used as a precedent to block Trump from running across America in 2024. Similar cases are making their way through courts in several other states.

In their ruling, the Colorado justices wrote:

‘We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.’

That sense of solemn duty led the justices to do what no US court has ever done before and rule that an American citizen cannot run for the presidency under section three of the 14th amendment.

To call that legally controversial is an understatement. Section three was written to bar secessionists from assuming political offices after the civil war. It states:

‘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.’

Donald Trump, as the 45th president, does qualify as an officer of the United States, having taken an oath to defend the constitution. Yet it is a matter of legal debate whether section three can be used at all, after Congress voted to ‘remove the disability’ under the Amnesty Act of 1872 and again in 1898. So the question of whether or not the section can be applied outside of a Civil War context — and in the case of Trump, to a president, who on January 3, 2020 was still in office – is a moot point.

That’s before we even get on to the idea that Trump incited an insurrection on that fateful day in early 2020. It is worth noting on that count that the criminal indictment of Donald Trump over January 6, filed in Washington DC in the summer, did not include an insurrection charge — focusing instead on his ‘conspiracy to defraud the United States’ over the 2020 election.

The Trump campaign will appeal the Colorado decision to the US Supreme Court and is confident that, with a six-three majority of conservative justices, the ruling will be overturned. Republican House Speaker Mike Johnson said he hoped the Supreme Court ‘will set aside this reckless decision’, which he described as ‘nothing but a thinly veiled partisan attack.’

Senator Thom Tillis, meanwhile, has put forward the Help America Vote Act, which would penalise states for ‘misusing the 14th amendment for political purposes.’

The Colorado justices issued a stay — or postponement — until January 4 to allow the US Supreme Court to decide the matter. If it is struck down, Democrat-led attempts to use the 14th amendment to bar Trump from the presidential election will probably all fail. But with 91 criminal charges hanging over him as we move into 2024, there are bound to be further legal attempts to restrict his campaign.

The Democrats will keep claiming that they are saving democracy from a dictatorship. Republicans will keep accusing Democrats of tyrannically abusing the legal system. And the 2024 election will keep descending into a bizarre farce.

So far, all such legal interventions appear to have helped Trump’s campaign, as his poll numbers keep rising. The people — who are meant to be ultimate source of authority in the United States — might not like Donald Trump, at least not by a majority. But it seems Americans dislike the lawfare against him more.