Can the Democrats Keep Trump Off the Ballot?

Two states, Colorado and Maine, have ruled that Donald Trump is ineligible to run for the presidency in those jurisdictions. These rulings are popular with Democrats: Rasmussen finds that:

Sixty-six percent (66%) of Democrats approve of efforts to keep Trump off the ballot, including 50% who Strongly Approve.

It is noteworthy that even among independents, 41% approve of Trump being removed from the ballot–not an auspicious sign for those who want Trump to actually win.

The Supreme Court has accepted certiorari in the Colorado case, and presumably stands ready to rule on Trump’s eligibility under Section 3 of the 14th Amendment. In the Wall Street Journal, Jason Riley looks at the options available to the Court. He notes that the decision might not be as sweeping as most expect:

[T]he U.S. electoral system is decentralized in the extreme. Our national elections are structured on a state-by-state basis, and election laws vary. When it comes to absentee ballots, voter registration, felon disenfranchisement, same-day voting and myriad other issues, procedures vary from one state to another. Ballot access is no different, and the Supreme Court historically has tended to allow states to make their own rules.

Akhil Reed Amar, a Yale law professor and constitutional scholar, remarked in a recent podcast discussion that the court might opt for a minimalist ruling that defers to Colorado but doesn’t bind other states. It could decide that Mr. Trump was permitted to make his case for ballot access and lost, thus upholding the Colorado Supreme Court decision while still allowing other states with different ballot-access qualifications to go their own way.

Well, maybe, but I doubt it. There is a substantive federal issue, not a state issue, that needs to be resolved:

What the court shouldn’t dodge, however, is its duty to provide some guidance on Section 3 of the 14th Amendment, a Civil War-era provision that bars from holding public office someone who has sworn an oath to defend the Constitution and then engaged in “insurrection or rebellion.” Colorado and Maine relied on the clause to exclude Mr. Trump from the ballot, but there’s wide disagreement over what it means and how it should be applied.

For starters, was Jan. 6 an insurrection and did Mr. Trump engage in it, or were his remarks that day protected by the First Amendment? Nor is it clear that Section 3 was meant to address anything other than the insurrection of 1861-65. Does it apply to other events, and does a disqualification written 150 years ago specifically to address the aftermath of the Civil War still apply today?

My own opinion is that Section 3 must be read in the context of the time. The nation had just come out of a civil war that lasted for four years and took the lives of 600,000 Americans. Many bloody battles were fought, including Antietam, where more Americans fell on a single day than at any other time in our history, and Gettysburg, the biggest battle ever fought on the North American continent. That was the context in which the words “shall have engaged in insurrection or rebellion against the” United States were written.

By that standard, was the January 6 protest, which admittedly got out of hand, an “insurrection or rebellion”? It lasted for a few hours, not four years. Only a single person was killed, not 600,000, and that was by the Capitol Police. Many or most of the people who entered the Capitol were invited in by Capitol Police. Not a single person who was arrested that day was in possession of a firearm. Surely, no one would launch an insurrection or a rebellion without anyone remembering to bring along a gun.

And the Supreme Court should be mindful of the fact that January 6 was not one of the worst riots we have experienced in recent years, even in Washington, D.C. On the contrary: there was a much worse “insurrection” on the day when Trump was inaugurated, and the George Floyd riot in D.C. was vastly more destructive, more bloody, and more properly deemed a rebellion than anything the January 6 protesters did. So I think the most straightforward way for the Supreme Court to resolve the Colorado case is by ruling that there was no “insurrection or rebellion” as contemplated by the 14th Amendment.

There is a separate question, of course, as to whether Donald Trump “engaged in” any such insurrection or rebellion. This is another of the Democrats’ weak points. Trump himself neither committed nor directed any violent acts on January 6. On the contrary, Trump told his audience to demonstrate peacefully and lawfully. Those who penetrated the Capitol were drawn largely or mostly from people who did not even attend Trump’s speech.

Some argue that the fact that Trump has not been prosecuted, let alone convicted, under the federal statute that makes “insurrection or rebellion” a crime insulates him against Section 3. I don’t agree with that theory. The language of the 14th Amendment does not make conviction a prerequisite, and by its terms creates a fact question as to whether a given individual did or did not engage in such conduct.

That said, I think the Court should be cognizant of the fact that the Special Counsel who searched high and low for crimes with which he could charge Trump skipped over insurrection and rebellion, no doubt because such charges would not be plausible.

There is also a legal question as to whether the president is or is not a holder of “any office, civil or military, under the United States.” As Jason Riley notes, there is an abstruse debate over whether the president is, or is not, a holder of an office under the United States. I have no opinion on that academic debate, but I do have an opinion on whether the Supreme Court should overturn the Colorado and Maine rulings on that ground: don’t do it. I think the average person would reasonably assume that the president is, indeed, a federal office holder. Deciding the case on that ground would leave the whole matter in an uproar.

There is a clear and simple path the Supreme Court can follow so as to preserve our democracy: hold that, however we characterize what happened on January 6, it was not an “insurrection or rebellion” as contemplated by the post-Civil War amendment; and, in any event, Donald Trump did not engage in any insurrection or rebellion. The Democrats’ anti-democratic attack on Trump needs to have a stake driven through its heart, and that is the way to do it.