Will this ruling stand?

That’s the question the whole country is asking right now about the Colorado Supreme Court’s unprecedented decision ordering Donald Trump removed from the 2024 presidential ballot, finding him constitutionally ineligible to hold future office.

The Dec. 19 unsigned opinion was the first by any state supreme court to address head-on the substantive arguments of Trump’s — or any presidential candidate’s — eligibility, given the allegations that Trump engaged in an insurrection on Jan. 6, 2021.

Trump disqualified from the Colorado ballot: Read the latest

Anyone who tells you they know for sure this will be thrown out by the U.S. Supreme Court, or even taken up by the Supreme Court, doesn’t know what they are talking about, because this case is truly a first of its kind.

“We are also cognizant that we travel in uncharted territory,” the justices themselves wrote in their opinion.

Investigative reporter David Migoya, who has written extensively on Colorado’s court system in recent years, asked several legal experts he knows to review the decision, and they agreed wholeheartedly that the case is unprecedented.

“Anyone who says they have an idea of what’s going to happen can’t because there is no book on this,” said Larry Pozner, a defense attorney and founding partner of Reilly Pozner who is widely regarded as an expert on cross-examination and criminal defense in high-profile cases. “The word unprecedented needs to be taken literally here. There is no history on how to resolve this issue.”

“You’re trying to take a modern election problem that we’ve never encountered and shoehorn it into a post-Civil War statute with an entirely different purpose,” said Pozner. “We’ve never had to work out the procedures of this situation.”

That statute, Section 3 of the 14th Amendment, was ratified in the wake of the Civil War to keep Confederates who had defied the country’s Constitution from running for office after the war.

Here’s the exact wording: “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.”

For me, it boils down to whether or not Donald Trump engaged in “insurrection.” The Colorado justices were very clear that they believe he did, but the court’s dissenters say there was a rush to judgment, that the question of whether or not Trump truly engaged in insurrection is too big to be decided in five days by District Court in Colorado. The dissenting judges, including Chief Justice Brian D. Boatright, point out that Trump not only has never been convicted of “insurrection,” he’s never been charged specifically with “insurrection.”

Boatright, in his dissent, wrote that the “absence of an insurrection-related conviction” against Trump should have called for the case to be dismissed. He also dissented in part because Colorado’s election code has “a limited scope” and was “not enacted to decide whether a candidate engaged in insurrection,” especially on an expedited timeline.

The legal experts we talked to think the U.S. Supreme Court will zero in on Boatright’s objection.

“What troubles me the most is it seems to me there has to be some sort of trial for the insurrection charge, where lawyers on both sides have discovery rights, and that’s not present in the Colorado case and, more importantly, it’s basically unworkable,” said Pozner.

David Lane, a partner at Killmer, Lane & Newman in Denver and one of the most noted criminal defense attorneys in the state, said the same thing.

“Boatright makes the point that insurrection is a criminal violation, and if someone is accused of a criminal violation under federal law, an indictment must issue, followed by the full panoply of due process rights associated with a criminal trial — including a trial by jury, the presumption of innocence, proof beyond a reasonable doubt and a unanimous jury verdict,” Lane told us.

“Given the conservative nature of the U.S. Supreme Court, this argument will carry a great deal of weight and I believe they will adopt Chief Justice Boatright’s dissenting opinion as the primary ground for reversing the Colorado Supreme Court’s opinion,” Lane concludes.

The only hesitation I have with that argument is that Section 3 doesn’t say “convicted” of insurrection. It says what it says: Government officers who engage in insurrection cannot be officers of the government again.

And the four Colorado justices who made the decision point out that there was a trial, a five-day trial in U.S. District Court, to decide whether there was an insurrection. The district court found that evidence from the congressional investigation into Trump, news reports on the Jan. 6, 2021, attack, the president’s own speeches and tweets and other testimony “from the record” indicate beyond a doubt in their minds that there was an insurrection.

Their approach to the wording of the statue could be considered “textualist,” that they take the text of the Constitution very literally and don’t try to read meaning into it, such as adding the idea of “conviction.” The statue says “engage in insurrection,” and the justices say the evidence they weighed clearly shows Trump ”engaged in insurrection.”

The justices, in their decision, even quote a definition of insurrection from Noah Webster’s dictionary from 1860, written at the time the statue was created:

“A rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state. It is equivalent to SEDITION, except that sedition expresses a less extensive rising of citizens. It differs from REBELLION, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one, or to place the country under another jurisdiction.”

The justices went on to review other definitions of insurrection ad nauseam.

“In light of these and other proffered definitions, the district court concluded that “an insurrection as used in Section Three is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States,” the justices wrote.

“Although we acknowledge that these definitions vary and some are arguably broader than others, for purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word “insurrection.” Rather, it suffices for us to conclude that any definition of “insurrection” for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.

“We have little difficulty concluding that substantial evidence in the record supported each of these elements and that, as the district court found, the events of January 6 constituted an insurrection.”

So if the U.S. Supreme Court intervenes and overrules Colorado, it will have to decide that the Colorado court didn’t have a right to decide what the plain text of the 14th Amendment means. The tricky part will be, if they decide that, then how do they argue that the U.S. Supreme Court has a right to decide what it means? Why are they different from the Colorado Supreme Court or District Court judges in Colorado in deciding what the Constitution says?

Given that likely legal game of Twister, Pozner wonders if the U.S. Supreme Court might not bother with the case at all.

“By not dealing with it, it has no effect outside of Colorado,” Pozner argues. “It’s earth-shaking in terms of its uniqueness, but it doesn’t seem to have a big play in the overall Electoral College. Trump isn’t likely to win Colorado anyway.”

If they don’t take the case, they don’t have to decide whether an insurrection took place, and whether Trump is disqualified for office. They wouldn’t have to set some sort of national precedent, thus politicizing the whole ball of wax even more. They could just decide this is a state’s rights thing, and let the states decide for themselves, something they’ve been inclined to do on other hot topics such as abortion.

If Colorado’s decision was not reviewed, it wouldn’t necessarily stand as a precedent for other states. And in fact, no other state has found yet that Trump should be disqualified. All the states where the issue has been raised have found just the opposite so far.

So the U.S. Supreme Court might just leave this one alone, let Colorado be Colorado and do its own Colorado thing. Colorado’s 10 electoral votes aren’t going to make much of a difference in the election anyway, and even if Trump were on the ballot in Colorado, past voting indicates there is no way he would win here.

The Supremes may decide that Colorado’s case is a moot point.