The Colorado Supreme Court, in a 4-3 decision, has issued its decision in Anderson v. Griswold, here. (Disclosure: I filed an amicus brief in support of neither party in the case.)

From the opinion:

In this appeal from a district court proceeding under the Colorado Election Code, the supreme court considers whether former President Donald J. Trump may appear on the Colorado Republican presidential primary ballot in 2024. A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot. The court stays its ruling until January 4, 2024, subject to any further appellate proceedings.

If review is sought in the Supreme Court before the stay expires on January 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court.

(The trial court had concluded it had jurisdiction and that Trump engaged in insurrection under Section 3, but that he had not taken an oath that subjected him to Section 3 and that the office of the president was not among the offices barred under Section 3.)

This is a major and extraordinary holding from a state supreme court. Never in history has a presidential candidate been excluded from the ballot under Section 3 of the Fourteenth Amendment. United States Supreme Court review seems inevitable, and it exerts major pressure on the Court. Even inaction would functionally exclude him from not just Colorado but perhaps other states. (UPDATE: Inaction as in cert denial by January 4. If the Court holds the petition until then, he will appear on the ballot–more on that below.) And granting cert requires the Court to step into the thorniest of political thickets. There are a dozen ways the Court could go. And there is no question this is a big, big deal. State law requires the Secretary certify names by January 5, 2024, and while it’s possible to bump beyond that, practical ballot printing deadlines will quickly approach, and the holidays mean any review will be more truncated.

Upon reflection, there are several things that come to mind. First, the Colorado Supreme Court’s timing remedy allows the United States Supreme Court an out, if it wants it, although it’s far from ideal. If the Court just sits on a petition for certiorari until January 4, Trump’s name appears on the ballot, and the Court then might conclude to deny cert because the case now presents a poor vehicle (i.e., the primary at issue has passed and the jurisdictional hook in the case is only for a primary election, not a general). Lots of uncertainty.

Second, the decision may embolden state courts or secretaries of state to exclude Trump the ballot. I don’t mean “embolden” as a pejorative–I simply mean that Colorado is the first mover, and no other political actor has to be the first mover. Relatedly, other jurisdictions have a blueprint of persuasive reasoning to rely upon–and, perhaps, a doctrine that could have a preclusive effect in other jurisdictions (a point Professor Steve Sachs raised).

Third, there are multiple ways Trump can lose, not just one (i.e., affirming the Colorado Supreme Court’s holding on Section 3 of the Fourteenth Amendment). One might be for the Supreme Court to approve the exclusion because this is a presidential primary and, consistent with cases like La Follette, the national party can ignore what the state does, or the state party can hold a caucus or some other delegate-selection process without a state-run primary. There’s tremendous uncertainty here.

Fourth, there is going to be a significant and uncertain political cost to Trump, in Colorado and beyond. Even temporarily being kept off the ballot has negative effects with voters. Do they want to risk voting for a candidate who’s been declared by a court to be ineligible? I think back to a recent dust up in Iowa in 2022, when a Senate candidate (and openly the front-runner) was barred from the ballot, briefly, for lacking enough signatures, only to have the decision reversed by the state supreme court days later. She then lost the primary to an upstart candidate who gained momentum those last six weeks as the campaign was seen in disarray and something of a risk. Will voters respond indignantly, belligerently, insisting they’ll vote for the candidate despite what a court says? Or will a number of voters wonder if they are throwing their votes away and choose to vote for someone else to have some influence in the process? It all depends, of course, on how other states approach it and how voters perceive the risk.

What tremendous uncertainty in the weeks ahead.

This post has been updated.