I will never look back and regret the six months of my life I dedicated to suing to keep former President Donald Trump off the 2024 ballot. He is an autocrat and an insurrectionist and poses the greatest threat to our democracy since General Robert E. Lee surrendered at Appomattox.
While we lost our case when the U.S. Supreme Court tucked tail and took an off-ramp, we won overall.
We won because we showed that ordinary people can stand up to a want-to-be dictator. We showed that insurrectionists will not be left unchallenged in our country. We set an example for the millions of Americans who will spend the next eight months working tirelessly to keep our country safe from a second Trump presidency.
The case started with just a few attorneys working through the strategy to bring a case in Colorado. Our laws made the state more attractive than most: Colorado allows ordinary citizens to challenge candidate qualifications; our process is fast and efficient, allowing for timely resolution; and appeals go directly from the trial court to the state Supreme Court.
Contrary to the recent conspiracy theories, the Colorado Secretary of State neither helped develop or bring this challenge. If anything, her statements and actions regularly caused consternation in our camp. For example, we changed the timing of our initial complaint when she began issuing statements declining to unilaterally enforce Section 3. We were concerned that those statements would entice other groups to file less-thorough lawsuits before us, and, consequently, be the first in the queue to be heard.
After extensive pre-trial briefing, we spent five days in court proving that Trump had engaged in an insurrection. We had law enforcement officers describe brutal attacks against them, expert witnesses methodically analyze Trump’s actions, inactions, and words, as well as the historical context of the 14th Amendment.
And it was all televised for anyone to watch. CSPAN broadcast every moment of the trial.
We lost on a legal issue at the trial court (the judge determined Section 3 did not apply to presidents), won at the Colorado Supreme Court, and then lost again, on separate grounds at the U.S. Supreme Court. While the two former issued detailed opinions spanning 102 pages and 133 pages, respectively, the latter spent only 13 pages skirting responsibility.
Nonetheless, that brief opinion will have repercussions throughout the coming year.
By leaving Trump on the ballot, the Supreme Court may have avoided some immediate backlash. But by leaving Trump on the ballot, they also almost certainly invited chaos down the road.
It is not hard to imagine armed mobs showing up at polling locations and counting facilities in Fulton County, Georgia; Maricopa County, Arizona; or in Philadelphia, Detroit or Milwaukee. It may even be likely as Trump no longer has the authority to command a federal response and must instead rely on his most extreme, violent supporters.
And that is just in the lead-up to the election. Post-election odds of a constitutional crisis seem almost preordained.
If Trump loses, he will certainly claim the results were “rigged” and apply pressure to any elected official he can. He has done it once before and, facing federal criminal indictments for those actions, he has even more incentive to do it again. As president, he can kill federal cases. As a two-time loser, he will end up in jail.
If Trump wins, but Democrats retake the House of Representatives and maintain control of the Senate, things could be even worse. The new legislature will be sworn in three days before the presidential votes are counted on Jan. 6, 2025. Given that the Supreme Court punted to Congress to determine how proceedings against a federal official are governed through “appropriate legislation,” the circumstances could be ripe for a clash between all three branches of government.
The amorphous phrase could be as simple as Congress adopting rules to determine whether an objection to counting votes for Trump is proper. Or it could be a bill adopted by the new Congress and signed by the then-sitting president — Joe Biden — that would bar Trump from office.
You can imagine the scene outside the U.S. Capitol if that scenario played out.
This could have — and should have — been avoided if the U.S. Supreme Court provided a full review of the case and determined all the questions presented to it. Instead, they chose the path of least resistance. That choice may send our country down the path of most turmoil.
That future now rests in the hands of the American people. They must be willing to dedicate themselves to a full, free election and defeat of the most dangerous man this side of Vladimir Putin. In the run up to the November election and months afterward, they must resist the forces of tyrannical autocratic rule that threaten to dismember our democracy.
We lost our case, but we set a precedent for courage in the face of evil. Hopefully it is a path millions of brave Americans will follow for the next year.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq.
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