Gage Skidmore, CC BY-SA 2.0 DEED
Former President Donald Trump speaking with supporters at a campaign rally at the Prescott Valley Event Center in Prescott Valley, Arizona, 2016.
Many people across the land are cheered by efforts to address the threat that Donald Trump poses to American democracy by attempting to keep him off the presidential ballot. Legal actions seeking to make this happen have been launched in Colorado, Michigan, and Minnesota, and may be pursued in other states.
Trump, the argument goes, has disqualified himself from holding public office under a seldom-invoked clause in the Fourteenth Amendment, passed in the aftermath of the Civil War, barring those who have “engaged in insurrection or rebellion against” the United States.
“The evidence is overwhelming that Donald Trump incited and mobilized the insurrection on January 6, 2021, at our nation’s Capitol,” said Alexandra Flores-Quilty, campaign director for Free Speech for People, one of the groups behind these efforts. “Election officials must carry out their duty, follow this Constitutional mandate, and bar Trump from the ballot.”
It is a quest doomed to fail, because the U.S. Supreme Court’s 6-3 conservative supermajority, including three Trump appointees, will never allow it. But it is also, in my opinion, a terrible idea—one that plays directly into Trump’s hands as an example of real, as opposed to imagined, “election interference” by his political foes.
Supporters of this idea are jazzed by a report from two conservative law professors and Federalist Society members, William Baude and Michael Stokes Paulsen, contending that Section Three of the Fourteenth Amendment “requires no legislation, criminal conviction, or other judicial action” in order to be enforced. In their view, it’s enough that Trump sure seems to have crossed this line.
But maybe there is a reason to question their judgment, as would surely be advisable if they were weighing in on anything else. Not only has Trump not yet been convicted of insurrection, he has not even been charged with it. Special Counsel Jack Smith, presented with the reams of evidence churned up by the House select committee that spent months looking into the matter, decided against charging Trump over his actions and inactions on January 6. Instead, Smith focused on Trump’s other efforts to subvert the election result, such as the scheme to anoint fake electors.
Elie Mystal, writing in The Nation in early August, shortly after this charging decision was announced, argued that Smith made a reasonable judgment call: “He’s got Trump, dead to rights, on obstruction; he doesn’t have him on insurrection. Smith is working with the laws and the evidence he has. If he could make a rock-solid case for sedition, I think he would have charged it. He couldn’t, so he didn’t.” Mystal felt this closed the book on efforts to invoke the Fourteenth Amendment against Trump.
But then professors Baude and Stokes Paulsen published their piece, which was heartily seconded by J. Michael Luttig, a retired federal judge, and Laurence H. Tribe, professor emeritus of Constitutional law at Harvard. The pair wrote an article in The Atlantic saying Trump’s role in the January 6 attack “place[s] him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as President ever again.”
That Trump is within the clause’s ambit does not make it any more likely that the Supreme Court will agree to disallow him from running. There is still a strong counterargument to be made that, for the clause to apply, Trump would need to be adjudicated guilty of insurrection. That hasn’t happened, and it likely won’t.
If the people of this country want to elect a President as manifestly corrupt and unfit as Donald Trump, that is their right.
Even if it were legally possible to keep Trump off the ballot, I believe doing so would be an affront to democracy. If the people of this country want to elect a President as manifestly corrupt and unfit as Donald Trump, that is their right. Letting voters make bad decisions is the essence of democracy.
The threat that Trump poses to American democracy is real. As President, he displayed utter contempt for democratic principles and institutions, cozying up to dictators and using the presidency to enrich himself and his family of grifters. He’s called for terminating parts of the Constitution he doesn’t like and has vowed, in seeking a second term, to exact “retribution” on his political rivals, which he’s acknowledged will include locking them up.
Trump is now facing a total of ninety-one felony counts in pending criminal prosecutions in four separate jurisdictions for his egregious misconduct before, during, and after his time in office. This is in addition to his being found civilly liable for sexual abuse and business fraud. In each case, he has been afforded every last ounce of due process to which he is entitled, and then some.
In the pending cases, it sure looks as though Trump is guilty as charged. But these are questions for juries and not pundits to decide, just as the decision on whether Trump should be returned to the presidency ought to rest with voters—not those who don’t trust voters to vote the right way.
“Denying voters the opportunity to choose is fundamentally un-American,” wrote Brad Raffensperger, Georgia’s Republican secretary of state and one of the targets of the November 2020 pressure campaign for which Trump and more than a dozen others have been criminally charged, in a Wall Street Journal op-ed. Doing so “would only reinforce the grievances of those who see the system as rigged and corrupt.”
Of course it would. That’s why the courts have already made it clear that they will not permit this.
In 2022, efforts to invoke the Fourteenth Amendment to boot then Representative Madison Cawthorn, Republican of North Carolina, and Representative Marjorie Taylor Greene, Republican of Georgia, were rejected by judges at the federal and state level, respectively. (Cawthorne, an “attention-seeking embarrassment” who bizarrely claimed his fellow Republicans attended orgies and used cocaine, was soon after defeated in a primary election.)
A New Mexico state judge did remove a county commissioner from office for taking part in the January 6 attack on the Capitol, citing the Fourteenth Amendment. But in that case, the commissioner, “Cowboys for Trump” founder Couy Griffin, had been convicted of a crime for entering and remaining in a restricted building.
In 1920, Socialist Party of America candidate Eugene Debs ran for President from prison and garnered almost one million votes. At the time, he was serving a ten-year sentence for violating the Sedition Act by making an anti-war speech. The Fourteenth Amendment was not trotted out to deny his right to run.
Trump, in his constant craving for victimhood, is eagerly using attempts to keep his name off ballots to rally his supporters and raise cash. Here’s how he expressed it, in his inimitable way, in a Truth Social post:
The defense of democracy cannot, and should not, include depriving people of the right to vote for the candidate of their choice.
“Almost all legal scholars have voiced opinions that the 14th Amendment has no legal basis or standing relative to the upcoming 2024 Presidential Election. Like Election Interference, it is just another ‘trick’ being used by the Radical Left Communists, Marxists, and Fascists, to again steal an Election that their candidate, the WORST, MOST INCOMPETENT, & MOST CORRUPT President in U.S. history, is incapable of winning in a Free and Fair Election.”
Trump’s lawyers, meanwhile, insist these efforts violate his First Amendment rights.
“At no time do Petitioners argue that President Trump did anything other than engage in either speaking or refusing to speak for their argument that he engaged in the purported insurrection,” wrote attorney Geoffrey Blue in reply to a lawsuit to bump Trump from the ballot in Colorado. Blue also made a bid for inclusion in the Hair-Splitters’ Hall of Fame by arguing that “the Fourteenth Amendment applies to one who ‘engaged in insurrection or rebellion,’ not one who only ‘instigated’ any action.”
A Colorado judge rejected this attempt to dismiss the lawsuit on these grounds. But no matter what fate such defenses meet in the state and lower federal courts, they will undoubtedly give the Supremes the cover they need to shoot down any challenges to Trump’s ability to stay on the ballot.
Donald Trump is a charlatan and a huckster and a clown. As President, he bungled the pandemic, added $7 trillion to the national debt, stacked the Supreme Court and entire federal court system with rightwing extremists, and played the fool in his every appearance on the world stage. In 2020, the American people voted him out of office. Since then, he’s been impeached a second time over the events of January 6 and his court picks have ended the Constitutional right to abortion, neither of which improve his electoral prospects. Meanwhile, Trump’s actions have become increasingly deranged, even including casually threatening the life of the nation’s highest military commander.
I have to believe that, given the chance, the American electorate will reject Trump again. Of course, there’s no guarantee, but trying to prevent this by denying people the opportunity to vote for him is going to make him stronger, whether he wins or loses.
Let’s all work to make the 2024 election as free and fair as possible and encourage everyone to vote. But the defense of democracy cannot, and should not, include depriving people of the right to vote for the candidate of their choice. Our focus as progressives ought to be on keeping Donald Trump from winning, not keeping him from running.