Law and Insurrection
Does the 14th Amendment Ban Trump from the Ballot?
While some of us tried to get a few days off over the past few weeks to celebrate the holidays, others were hard at work producing court rulings and official decisions with enormous consequences for the new year. So it’s time to catch up.
On December 19, a majority of the Colorado Supreme Court ruled that Donald Trump is ineligible to appear on ballots in the state’s presidential primaries because he is disqualified from office by Section 3 of the 14th Amendment, which bars from office anyone who has engaged in insurrection against the United States. The 14th Amendment was passed in 1866 and was intended to prevent a political comeback by the defeated Confederacy.
The Colorado Supreme Court ruled that this provision also applies to Donald Trump’s attempt to prevent the certification of the 2020 election result. Here’s the text of the ruling, and see also a good summary, with key quotations, from Ilya Somin.
This followed a ruling by the Minnesota Supreme Court that rejected a similar challenge, but on narrow grounds. It did not decide whether Trump is eligible to be on the ballot for the general election, but it declined to interfere in the Republican primaries because, as the New York Times puts it, “There is no law in Minnesota prohibiting a political party from putting a constitutionally ineligible candidate’s name on the ballot” for their primaries.
On December 27, the Michigan Supreme Court made a similarly narrow ruling, also leaving undecided whether Trump would be eligible to appear on the general election ballot. A case in Virginia was dismissed due to “procedural deficiencies.”
Then on December 28, Maine’s Secretary of State issued an official decision that Trump is disqualified by the 14th Amendment from appearing on the state’s ballots. In most states, the Secretary of State is in charge of election administration, and Maine law specifically requires a candidate to provide “a statement that the candidate meets the qualifications of the office the candidate seeks” before the secretary allows his name to be printed on official ballots.
There will be more legal challenges producing a variety of results. The Lawfare blog has a state-by-state tracker. At this early stage, none of the states that has removed Trump from the ballot would be likely to tip the result of the next election, but if a state like Michigan were to rule differently when it comes to ballots for the general election, this is a real possibility.
If ever there were a case that requires a ruling from the Supreme Court, this is it. So basic a question as whether a major party candidate is qualified to run for office requires a single federal-level answer.
And we need the answer urgently. The Iowa Republican Caucus is on January 15, followed by the New Hampshire Primary on January 23. Donald Trump completely dominates Republican polls; the base of the party clearly wants to nominate him. So in less than two weeks, if the Supreme Court does not issue a definitive ruling, Republicans will begin to choose a candidate who could be ineligible for office.
But how should the court rule? Which outcome is most consistent with representative government and the rule of law? Which is the proper interpretation of the Constitution?
Let’s look at the language of the 14th Amendment and the arguments on either side.
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We The People
The best thing about the US Constitution is that it is written in plain, clear English. It is a document for “we the people” and intended to be understood by us. There are a few parts that have ambiguous constructions, use terms with technical meanings, or which are difficult to apply in light of new technology or social arrangements. But most of it can be understood by anyone capable of basic reading comprehension.