When President Joe Biden said that “democracy is on the ballot” in the 2022 midterms, few could have imagined that this is what he meant. This week, a court in Colorado acted to short-circuit the presidential election in their state — in favour of Biden.

In Anderson v. Griswold, a 4-3 majority of the Colorado Supreme Court overturned a lower court decision to hold that former president Donald Trump was a participant in an insurrection and, by the terms of Section 3 of the Fourteenth Amendment to the US Constitution, is ineligible for the presidency. He must therefore be excluded from the Republican primary ballot in that state, scheduled for 5 March 2024.

The insurrection in question was the January 6 Capitol riots that attempted to interrupt the counting of the electoral votes from the 2020 election, which Trump claimed (and still claims) was stolen from him. 

The theory that the post-Civil War amendment automatically disqualifies him is not an open-and-shut case, legally. In fact, the opposite is true: until recently, such a claim would have been dismissed as constitutional fan-fiction — and has been by courts in Michigan, Minnesota, and New Hampshire. 

In the Rocky Mountains, though, Left-wing legal prospectors struck the mother lode. The court found that the novel interpretation of the clause did apply, despite Congress never authorising it, and despite other state courts finding no merit in it. Indeed, Trump has never been found guilty of insurrection by the Senate or any court.

The court found it difficult to define “insurrection” and looked to a variety of sources old and new. But this is the problem with making up your own laws as you go — there are no neutral standards. Had Congress ever enacted the provisions of Section 3, there would have been a law for the court to read and a definition of the terms used in it. But there isn’t, so the esteemed justices of the Colorado Supreme Court decided, as Bill O’Reilly once did, to “do it live”.

In the court’s opinion, Trump “engaged in insurrection,” and for certain definitions of “engaged in” and “insurrection,” that might be true. But no effort has been made to establish which definitions apply, nor to see whether a jury would agree that they do apply to Trump’s actions that day.  

Instead, the court resorts to blanket statements. The fact of insurrection “cannot be reasonably denied”, they say. Evidence of his “engagement” in it? Some lines from a speech and a selection of tweets. It’s not exactly firing on Fort Sumter. After the Civil War, we knew the insurrectionists — they had proclaimed a new government and taken arms against their old one. January 6, reprehensible though it was, is not nearly so obvious a case of rebellion.

Justice is supposed to be blind, but this is just blind partisanship. And the reaction will not be what the Democrats intended. When Trump and his allies spent 2022 talking about the election having been stolen from them, the voters’ response was to reject them and vote for Democrats who (they said) stood for democracy and the rule of law. 

A little over a year later, we have four Democratic-appointed judges deciding that, yes, actually, the election will be rigged this time — against Trump. The former president lost the 2020 election legitimately, but a vote in which he is not even allowed to complete cannot be called free and fair. In attempting to protect democracy, this court is helping to destroy it.