We seem to be inching closer and closer to the time when actual voting becomes just an archaic gesture, a symbolic relic of secondary importance in the conduct of elections, which will have evolved from democratic exercises to legal jousting matches. Democracy, by nature, has always been messy and always will be, but I struggle to find any political philosopher who predicted the devolution of the enterprise to an interminable episode of “People’s Court.”

Yet here we are. Despite the myriad of issues – serious ones, both foreign and domestic – facing the nation, the cynosure of the 2024 election is undeniably on courts, trials and legal battles. Most of it, of course, focused on former President Donald Trump’s several pending indictments, all in the shadow of his insane and prolonged legal challenge of the outcome of his last election. It’s a tactic he borrowed, incidentally, from Georgia Democrat Stacey Abrams, just so we’re reminded of the fact that election denial is bipartisan.

To add to the legal spectacle overtaking the next presidential election we read of the lawsuit filed by six Colorado voters, mostly Republicans, against Donald Trump and Colorado Secretary of State Jena Griswold to disqualify the former from the Colorado 2024 presidential ballot citing Section 3 of the 14th Amendment.

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Now, I happen to know a number of the litigants, and have a great deal of respect for them. I believe their motivations are genuine and noble – they do not, for a number of valid reasons, want to see Donald Trump’s name anywhere near a ballot ever again. I have a great deal of sympathy for that position. But there are a number of issues, philosophical, legal and of course political, that provide good reason for pause.

The third section of the 14th Amendment reads thusly:

“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.”

It was adopted shortly after the Civil War, and was in place to bar former Confederates from holding office, specifically those who had sworn oaths to the United States and then took up arms against it by actively joining the Confederacy.

So the first question is whether or not the lunacy of Jan. 6, 2021 was an “insurgency.” Well, for a nation born of an insurgency, it was a pretty pathetic and incompetent attempt at one, that’s for sure. Nevertheless, a good argument can be made it was – after all, it was a rioting mob that stormed the U.S. Capitol to stop the peaceful transfer of power. Fair enough.

But isn’t any political gathering or protest that devolves into violence and rioting ultimately seeking a change in the existing order by less-than-peaceful means? The riots during the summer of 2020 certainly were. The ones in Denver breached the State Capitol during a time when the legislature was in session, and their goal was not a change in the rotunda artwork; does that count as an “insurrection?” Perhaps, but let’s be careful.

The finer legal point is whether Trump’s conduct qualifies as engaging in insurrection. Moral culpability for the disgrace of Jan. 6, 2021 clearly rests on the former president. But it is noteworthy he has not been charged or indicted, much less convicted, of leading an “insurrection,” which is the basis upon which the lawsuit hangs his disqualification from the ballot. That is not a trivial obstacle.

It is interesting to note the different approaches taken by two secretaries of state concerning this: Colorado’s Griswold, who is named as a defendant in the lawsuit, takes the easy route – she seems more than happy to sit back and let the courts decide to tell her how to do her job. Georgia’s Brad Raffensperger – certainly no fan of Trump – took a far more cautious and reasoned approach; in an op-ed published by The Wall Street Journal pointedly titled, “I Can’t Keep Trump Off the Ballot”, he argues doing so is more complicated than simply employing an elastic Constitutional interpretation, writing: “Invoking the 14th Amendment is merely the newest way of attempting to short-circuit the ballot box.”

Which leads to the political point – that such a move could be enormously counter-productive. Raffensperger continues:

“For a secretary of state to remove a candidate would only reinforce the grievances of those who see the system as rigged and corrupt. Denying voters the opportunity to choose is fundamentally un-American. Since our founding, Americans have believed that a government is just when it has earned the consent of the governed. Taking away the ability to choose – or object to – the eligibility of candidates eliminates that consent for slightly less than half of the country.”

Just so. For those of us on the right who pray Republicans will emerge from their collective stupor and nominate a solid, respectable, intelligent conservative candidate to replace Joe Biden – and those millions of Americans of all stripes who desperately do not want this election to be another choice between two horrendous options – putting Trump on another legal pedestal will only further invigorate his followers (and that is unlikely to survive a court challenge in any case). As the editors of the WSJ put it, if you think political tensions in the country seem high now, just wait.

Kelly Sloan is a political and public affairs consultant and a recovering journalist based in Denver.