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A fear, or consensus, is forming that keeping Trump off the ballot under the provisions of Section 3 of the Fourteenth Amendment would be destructive of the democratic process, Trump has not been convicted of anything and the example from New Mexico was inapt. State of New Mexico ex rel. Marco White et al. vs. Couy Griffin removed a county commissioner from office on the grounds that his January 6 actions constituted an insurrection.
This has become the leading case and provides a good overview of some of the issues, particularly the distinction drawn between the civil and criminal aspects around insurrection and eligibility for office. The defendant there was found ineligible to continue to hold office based on the facts established at trial. Under that precedent he would be ineligible to run for office also, unless Congress voted to remove the disability. For the full-fig treatment of all the legal issues around the applicable law see Baude and Paulson, The Sweep and Force of Section Three.
How does this relate to Trump? Trump wasn't at the scene and did not perform the identical acts. Hypothetically, if he had been at the defendant's side mirroring the same acts, should a court have rule differently in the case of a former president than it did for the commissioner? Enter the horse of a different color.
That is the point about the broad political consequences of a judicial proceeding that has the effect of keeping a candidate off the ballot. Who makes that call? Should the decision take into account the political calculus or the long-term consequences of the entire system of government?
In every state there is someone, often a secretary of state, whose job it is to prepare ballots. She is either going to have a name put on the ballot or not. And there are rules by jurisdiction for that but it doesn't end there. Whichever way the decision goes, someone will be aggrieved. So whatever the political considerations go into the election official's call, that's not the end.
Next is the thinking of whoever decides to intervene to keep a name off the ballot or to put it on. Private parties can have whatever political motivation they like. Prosecutors have broad discretion and use it with varying degrees of political considerations. My sense is that politics enters into the equation most with local elected DAs in small offices and least at the national level. The only former US AG to be elected to higher office that I can think of was Bobby Kennedy. Ambition seems less a factor than at state and local levels. In any event, the only way to keep prosecutors pure of heart is public opinion and politics. The courts can't toss an otherwise valid legal action simply on the grounds of political motives of the prosecution.
This leaves the judicial system and the fact finding parts and the legal parts. Jurors have the big part of fact finding. Like everyone they have political biases and they vary in the degree to which they take seriously the instructions to set those aside. But if they are not overt about their bias overriding their duty, it's rare for inquiry into their heart of hearts.
The work of trial court judges is almost completely consumed with procedural process and case management during the course of a case. It's only toward the end of a matter that substance come to the fore. What a trial court judge can't do here is to come out and say Section 3 of the Fourteenth Amendment has outlived its original purpose and has no further validity. Even less concede that it is still in effect but shouldn't be applied because, say, it would be too controversial.
Next are the appellate courts. There a lot of inside baseball to how the process plays out in terms of which specific courts and such, but we can assume here that the question will get to one or more of the circuit courts. The lucky 3-judge panel will be asked to take yet another deep dive into the fine points of procedure in the handling but eventually will have to mix it up with the substance if a case from another circuit hasn't resulted in the Supreme Court settling the questions raised. While it's possible that the panel will find that the trial court got everything exactly right, what usually happens is either a different conclusion or a different way of reaching the same conclusion. But they aren't going to dodge by saying this is all politics and the case doesn't belong in the courts at all.
Only the Supreme Court gets to call something a "political question" that the courts can decline to decide when there is standing law that so clearly covers the subject. When these cases get there it's hard to see that happening if any circuit with at least one swing state keeps a candidate off the ballot.
Justice Thomas may see the question of the 14th Amendment Equal Protection rights of a candidate kept from the ballot as paramount, recalling Bush v. Gore. It's not hard to see the Chief and Justices Kagan, Sotomayor and Jackson taking a "plain meaning" approach upholding an exclusion. Justice Alito will have trouble escaping his history and tradition doctrine from Dobbs, which would seem to compel him joining or concurring in a plain meaning opinion. But he may have other innovations in mind. I'm not sure about Justices Gorsuch, Kavanaugh and Barrett. I can see Justice Kavanaugh bringing the other two with him to a plain meaning opinion, but I don't think either would go there without him.
I see this as a stress test of the polity. Is respect for the rule of law strong enough to survive taking the choice of president away from the voters? A 10-year old kid isn’t qualified, due to age. That, theoretically, takes the choice from the voters, but no one is too upset. For the present case, however, there’s more than enough political turmoil to go around already. It’s hard to see very many Trump followers taking an adverse outcome philosophically. More likely, the common reaction will settle into more alienation from the system of government and defiance and unrest. But the judicial system shouldn’t dodge its job of applying the facts to the law just because the political foundations will be shaken. They will be anyway.
