On December 19th, the Colorado Supreme Court overturned a prior court’s decision and ruled that Trump was disqualified from the state’s presidential primary contest and, likely, general election ballot under the 14th Amendment’s disqualification clause. The political sphere quickly responded to the bombshell ruling: California Lieutenant Governor Eleni Kounalakis penned a letter calling on California Secretary of State Shirley Weber to strike Trump from the primary ballot, a move which Governor Gavin Newsom refused to endorse, and Maine Secretary of State Shenna Bellows removed Trump from the ballot in the Pine Tree State. In the end, Weber kept Trump on the ballot in California, Trump was removed from the Maine ballot, the Michigan Supreme Court and Minnesota Supreme Court both ruled that Trump must stay on the primary ballot but could face challenges over his general election eligibility at a later time, and both the Colorado GOP and Trump campaign appealed the Colorado Supreme Court decision to the U.S. Supreme Court.

The Trump team has also won against challenges in New Hampshire, Arizona, Florida, Rhode Island, and West Virginia, albeit not on the same level. However, those could be temporary wins depending on how the U.S. Supreme Court responds. The Supreme Court, in an unsigned order, set oral arguments for February 8th--the same day as the Nevada GOP caucuses and and two days before Mock Convention's prediction. Here's what you need to know.

Why Did the Colorado Supreme Court and Michigan Supreme Court Rule Differently?

Section 3 of the 14th Amendment has become a heated topic of debate in recent months, primarily due to the events on January 6th, 2021. Many legal scholars question whether January 6th was a true legally defined insurrection or not. Another contentious point is that there is no indication elsewhere in the Constitution that “president of the U.S.'' belongs in the 14th Amendment's list of “elected office[s].” Because of these discrepancies, Trump is now under fire as several state courts begin to rule on his eligibility for president. The aim is to remove him from the primary ballot for violating the “insurrection clause” of 14th Amendment. Colorado was the first state to rule against him, while Michigan is the most recent to have ruled to keep him on the ballot.

Colorado’s decision took place earlier this month. The Colorado Supreme Court’s argument cited Section 3 of the 14th Amendment. This part of the amendment bars individuals who have “previously taken an oath” to support the Constitution and those who have “engaged in insurrection or rebellion” against the U.S. The decision was narrowly decided, with four concurring and three dissenting. Colorado recognized its decision as unprecedented and controversial, and they expected it to reach the U.S. Supreme Court, as mentioned in the majority decision.

Michigan was another state closely watched after Colorado’s ruling came out. The state took a different route, allowing Trump to remain on the primary ballot. The Michigan Supreme Court’s explanation for its decision was that it raises a political question that ought not to be decided in the courts, as stated by its lowest court, the Court of Claims. Additionally, the Michigan Supreme Court said that state law does not allow for election officials to police or determine the eligibility of presidential primary candidates. Both the Appeals and Supreme Court held similar conclusions.

In essence, the Colorado Supreme Court felt as if the provisions in the 14th amendment were significant enough to rule on, while the Michigan courts did not. Additionally, there is a specific duty in Colorado state law to “exclude constitutionally disqualified candidates,” including in a primary election. Michigan does not have a similar state law. Secretary of State Jocelyn Benson further added that it is up the U.S. Supreme Court to determine what will come of the recent rulings.

The Supreme Court could rule that the president is not an applicable “elected office,” determine that further congressional action is needed to allow state courts to act, reject that Trump engaged in insurrection, rule that disqualification does not bar one from seeking office, just from taking office, decide that the Colorado Supreme Court decision upsets the balance between legislative and judicial authority and violates the Constitution’s Electors Clause, assert that the First Amendment protects Trump’s January 6th speech or that its right of association bars such a disqualification from taking place in a presidential primary, say that Trump hasn’t been afforded due process on an insurrection charge, claim that the issue is for voters to decide, or take another narrow approach.

What Does This Mean for State GOPs?

Let’s use Colorado as an example to explore what options state GOPs have at their disposal if such a ruling stands. First, the Colorado GOP and the Trump campaign have appealed the Colorado Supreme Court decision to the Supreme Court. Should the Supreme Court opt to uphold the Colorado Supreme Court’s ruling, Trump would be permanently removed from the state-run primary ballot–a quickly approaching Super Tuesday contest. And, you can expect other states to follow if this scenario plays out.

So, what can the Colorado GOP do? First, they already submitted and finalized their delegate selection process by the October 1st due date in accordance with national RNC rules. Changes made after the October 1st deadline must follow a strict procedure. First, if the rules submitted by October 1st cannot be followed, then the rules used last presidential cycle must be followed instead. However, in Colorado, this step is highly unlikely because the Colorado GOP used a state-run primary last cycle; Trump would still be off the ballot. If this step is impossible, although it is possible to follow the submitted delegate allocation rules but impossible to do so with Trump on the ballot, then a Colorado GOP-run caucus/convention process can be used and the Colorado GOP can opt out of the state-run primary. The debate over whether or not it is impossible to follow the Colorado GOP’s submitted and finalized October 1st delegate allocation plans could come to haunt any resulting delegation.

Finally, and most likely, the national RNC could grant the Colorado GOP a waiver and allow a state party-run caucus/convention nominating contest to take place with no rule challenges. The national RNC would have to decide whether granting a waiver is in the Republican Party’s best interest in this scenario, and this is what the Colorado GOP has suggested it is most inclined to do if Trump is permanently removed from the state-run primary ballot.

Of course, a favorable Supreme Court ruling is ideal for state GOPs. And, while the Colorado Supreme Court decision is stayed, Trump is technically still on the ballot (although you’d have to expect an expedited U.S. Supreme Court decision). If this happens, none of this delegate allocation change stuff matters. All eyes are on the Supreme Court, but surely these discussions have begun in each state GOP–it would be a mistake to not prepare for such an outcome. If this does come into fruition, a bitter internal fight may take place… especially if Trump is ruled ineligible in a manner that applies to general election ballots as well.

What Does This Mean in Colorado and Maine?

In Colorado, the ballot goes to print on February 11th (the day after Mock Convention’s prediction) and the Colorado Supreme Court’s decision is currently stayed while the appeal to the Supreme Court is ongoing. So, the timeline really matters here. While the decision is stayed, Trump will remain on the ballot. The Trump team wants a Supreme Court decision before Super Tuesday, while the challengers want a decision by that February 11th date.

Colorado also has to contend with a fractured state party, with a vocal Trumpian wing tethered to an issue focused majority–although the rallying call of the Colorado Supreme Court decision might shore up unity on this issue. However, Greenwood Village Councilman Paul Wiesner told Mock Convention that “The Colorado ruling on removing Trump from the GOP primary is only going to drive more division in the Colorado and National Republican Parties, add more mistrust in the ability of our leaders from both parties to effectively govern, and focus the National discussion on matters that are not critical to the safety, economic prosperity, protection of individual rights and future liberties of this Country and its citizens.” This is something that we are gauging closely.

In Maine, a court didn’t make this decision; a Democrat serving as Secretary of State did. As a result, the Trump campaign has filed an appeal to the state court. However, such a decision would be directed by any Supreme Court decision. Maine is a Super Tuesday state, meaning there is a tight timeframe here with around two months to go to March 5th. Trump holds strong support in northern Maine, but more populated areas of the state lean more moderate. So, if this holds, potentially suppressed turnout in northern Maine might advantage a more moderate candidate over a Ron DeSantis or Vivek Ramaswamy. The Maine decision, too, is stayed while the Supreme Court takes a look.

What Does This Mean in California, Michigan, and Minnesota?

In California, Secretary of State Shirley Weber stood up to political pressure and kept Trump on the ballot. Trump’s strong polling suggests that he will hit the delegate large state’s winner-take-all trigger. However, if the U.S. Supreme Court rules against Trump, then other candidates may have an opportunity to lobby against this decidedly pro-Trump provision if the aforementioned waiver process is followed and delegate allocation changes are made.

In Michigan, the state GOP already faced hurdles to approve its primary-caucus hybrid model, relying on an RNC waiver to hold a state-run open primary to award around ⅓ of the state’s delegates in late February, with a March 2nd closed caucus to award the rest. The state party could, if an anti-Tump Supreme Court decision impacts his eligibility in state run processes, shift to just the caucus and drop their involvement in the state-run primary… with another waiver, of course.

At present, Trump leads the Michigan primary polls by more than fifty points. In 2016, President Trump won both the Republican primary and the general election in Michigan, a state largely viewed as a political bellwether. Trump, naturally, celebrated the ruling and denounced similar efforts in other states to remove him from the primary ballot.

In Minnesota, the early November decision to keep Trump on the ballot and, like Michigan, essentially punt to general election eligibility, gives us more of a timespan to see the decision’s impact at the state level. The Minnesota Supreme Court’s rejection of the request to bar former President Donald Trump from the primary ballot in 2024 rallied more support from conservatives in the midwest. The court gave Minnesotans clarity about who will appear on the primary ballot, but they left open the possibility for the plaintiffs to bar Trump from the general election ballot. The Court's decision has validated Trump's eligibility to run, giving him more credibility and invigorating his Minnesotan base.

What About the Big Picture?

We remember being in the crowd at the first debate in Milwaukee when former Arkansas Governor Asa Hutchinson brought this up and was pretty loudly booed by the Republican crowd. The same thing has happened each time Chris Christie has brought up Trump’s indictments. So far, we have seen polling jumps and consolidated support for Trump as the party rallies around him. The DeSantis camp suggested as much after the Colorado decision, regretting the indictment and now ballot distractions as controlling the race’s narrative in a pro-Trump manner.

However, these polling bumps have decreased in scale after each indictment, and the ballot question quite literally restricts Trump's ability, unless the Supreme Court decides in favor of Trump, to win certain states. It could also have down ballot consequences. If you can’t vote for your preferred candidate, why vote? This gives Trump’s opponents a chance to characterize Trump as having possible general election difficulties that they don’t have. If the Supreme Court strikes him from the ballot, it could weaken his support if he is removed from being able to even appear on general election ballots. If the Supreme Court sides against him, it becomes harder to grant waivers in the best interest of the Republican Party to allow a candidate removed from general election ballots to be the party’s nominee.

The Supreme Court controls the outcome here, but we expect the national RNC to almost certainly grant waivers to state GOPs to do a party-run process if need be to circumvent state government decisions, absent a Supreme Court national ruling disqualifying Trump. Changing from a primary to a caucus/convention format, though, helps candidates with a strong and organized operation with support from party activists and likely caucus goers (different than likely primary voters). That organizational strength is exactly what Donald Trump has this time that he didn’t in 2016, and a caucus format is likely to help the former president.

The Supreme Court has never ruled on the 14th Amendment’s insurrection clause since its passing in 1868. The Amendment’s vague description of what an insurrection is and what qualifies as an elected office will make for a monumental decision and one that has the capacity to seriously alter the presidential primaries and the 2024 general election. There are various off ramps that the Court can take to avoid answering whether Trump engaged in insurrection or not. Trump needs to win just one of these arguments to remain on the ballot.

The Supreme Court could very well decide this race with a firm decision. Either way, the RNC has the ability to keep Trump as a primary candidate if it chooses to do so. Bush v. Gore was decided in three days–the same urgency is needed here.