The Colorado Supreme Court’s ruling on Tuesday will forever symbolize judicial activism and buffoonery.

Trump could and should have stopped the Capitol riot of Jan. 6, 2021, by immediately asking his supporters to back off. He should have swiftly condemned the actions of those who entered the Capitol or committed violence. Voters will decide if Trump gets another term.

Yet, no amount of disliking Trump authorizes four appointed lawyers to deprive millions of Coloradans the option to nominate him. Nothing gives activist judges the authority to undermine our country’s democratic election process.

At issue is Colorado’s Uniform Election Code of 1992, which plaintiffs claim prevents Colorado Secretary of State Jena Griswold from placing Trump on the March 5 primary ballot. They claim he committed insurrection in violation of Section 3 of the 14th Amendment – a law enacted to keep Confederate insurrectionists from holding office after the Civil War.

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Tuesday’s 4-3 ruling overturned a recent Denver District Court decision that kept Trump on the ballot. Expect the U.S. Supreme Court to take this up soon and reverse it in time for the primary. Reversal is nearly guaranteed because this ruling is just plain silly.

Typically, one must look to dissenting opinions to find flaws in majority rulings. Not in this case. It reads like a 213-page political manifesto stuffed with tortured, sophomoric legalisms. It says Trump had no First Amendment right to give his Jan. 6 speech preceding the riot.

The judges say Trump’s speech was a call to armed insurrection. Of course, there’s a reason Trump has not been tried and convicted of any such crime. He did not specifically call for a riot or insurrection, leaving prosecutors with nothing more than assumptions regarding his intent and how listeners deciphered his words.

To get past that matter, the majority cites NAACP v. Claiborne Hardware. Incredibly, the case works against the ruling.

Claiborne arose after Charles Evers led protesters to the Claiborne County courthouse to demand the firing of the police force. When the demand was not met, Evers warned other Blacks, “If we catch any of you going into these racist stores, we’re going to break your damn neck.” He said boycott violators “would be disciplined by their own people.”

At least 10 Black people claimed harm as a result. The court ruled the First Amendment protected Evers’ speech, despite how followers acted on it. That weighs in favor of Trump’s First Amendment protection of the Jan. 6 speech.

Trying to twist the precedent for their advantage, the Colorado judges explained how the Claiborne opinion lamented the lack of evidence to prove Evers knew the perpetrators. Without it, they could not conclude the speech explicitly or implicitly encouraged violence – even though it called for punishments and discipline.

Tuesday’s ruling says, “By considering and placing value in the absence of corroborating evidence of Evers’ violent intentions, the court implied that courts may look to circumstances beyond the speech itself to determine intent.”

The justices know Trump’s intent because of district court testimony from a sociology professor who wrote “American Swastika: Inside the White Power Movement’s Hidden Spaces of Hate” and “Out of Hiding: Extremist White Supremacy and How It Can be Stopped.”

The professor testified that Trump had “a shared coded language with his violent supporters.” Maybe there’s a cryptogram.

Similar contortions cite precedent for candidates kept off ballots for not meeting age requirements – a ridiculous comparison. Age is a verifiable fact. Prosecuting a former president’s speech involves semantics, the First Amendment and a tangle of legal nuance. This is not something we leave to a sociology teacher who doubles as a paid “expert witness.”

Regardless of politics, or the high drama surrounding Trump, the Colorado Supreme Court just issued a political screed cloaked as jurisprudence. It has legal scholars laughing out loud.

Colorado Springs Gazette Editorial Board