Arizona Secretary of State Adrian Fontes makes an important point about the third section of the 14th Amendment and its possible applicability to the 2024 presidential election.  The post-Civil War legal language bars anyone who has taken an oath to uphold the Constitution and then engaged in rebellion or insurrection from ever holding public office again. If Donald Trump’s broad effort to steal the 2020 election qualifies as a rebellion or the January 6 attacks satisfy the definition of insurrection, then the orange shitgibbon can be ruled ineligible to even appear on the ballot. Fontes knows that whatever he decides, the issue will land up in court.

For now, he’s “deciding on how to decide” how to proceed with who exactly appears on the 2024 ballot and gathering clarification from legal counsel.

“I cannot imagine a scenario where … a secretary of state allows Mr. Trump to be on the ballot and does not get sued. I can also not imagine a scenario where Mr. Trump is disallowed and does not get sued. I mean, this is this is this is where we are now. So I believe that we will be sued no matter what. I’ve still got to do my due diligence to get the job done,” Fontes said.

The takeaway is that it doesn’t particularly matter how any particular Secretary of State or top election official comes down on the issue, because their decision will be challenged in court. And this being a federal election, the issue will most definitely be decided in federal court. I can’t see a scenario where it doesn’t land with the Supreme Court of the United States.

Suits have already been filed in at least a couple of states, including Michigan.

On the merits, I do consider Trump’s post-election behavior in 2020 and 2021 to constitute a coup attempt. Admittedly, it’s an unusual coup attempt because he was still the leader of the government he was trying to topple. That may result in ambiguity about how the law applies. If you can imagine an alternate scenario where the challenger, Biden, had lost and then led an armed attack to prevent Congress from certifying the vote, that would have been more clear-cut even if in a very real way it’s a distinction without a difference.

Importantly, the January 6 riot was just one part of the coup attempt. It’s the part that most clearly fits the definition of an insurrection because it was a direct attack on one branch of the federal government with the intention of changing who would run another branch. But the refusal to accept the results and the effort to simply steal the election by having Mike Pence declare himself and Trump the winners was something that fits the definition of a rebellion.

Now, as Clarence Thomas’s wife was a leader in that rebellion and attended the insurrection, I don’t predict he will agree with these definitions. But I also don’t see any particular reason he’d want to see Trump on the ballot in 2024. There’s very little reason to believe Trump will be a strong general election candidate, and he’s already proven to be a catastrophically incompetent president. My guess is that the conservatives on the Supreme Court, much like the vast majority of Senate Republicans and other conservative Washington, DC, brahmins are eager to get to a post-Trump world.

As for how they’d decide the case, I suspect they’ll choose the option best calculated to go over well with their immediate social circle. Perhaps Thomas will be persuaded by his wife Ginni to give Trump a pass, but I’m less sure about Gorsuch, Kavanaugh, Alito and Roberts.

After all, it will really come down to pure preference. If you want to disqualify Trump based on Section 3 of the 14th Amendment, all you have to do is agree to define Trump’s behavior as an insurrection or rebellion. Some participants in January 6 have already been convicted of engaging in sedition, which is defined as “conduct or speech inciting people to rebel against the authority of a state.” Some of been sentenced to over 15 years in prison for this offense of rebellion. It’s not a leap to just call it a rebellion.

I think this would be the ideal outcome, actually, because if a conservative Supreme Court that includes three Trump appointees decides that Trump engaged in a rebellion and insurrection against the United States, it will take the partisan sting out of the charge and grant it the widest possible legitimacy, and that’s important not only for the current election cycle but as a precedent for the future of the country.

Of course, tens of millions of Americans would be outraged and become more antiestablishment and anti-Washington than ever, but some fallout from Trump’s behavior simply can’t be avoided. There is no magic answer that solves everything, but a solution that fits on the merits, holds Trump accountable and forever cuts off any potential return to power, is a good solution.

On the other hand, the possibility that the Supreme Court will rule that Trump did not engage in a rebellion or insurrection and is eligible to stand for office is going to set a bad precedent and won’t solve a thing.