Is Colorado Right? Should Trump Be Banned from the Ballot?

Admit it: up until a few months ago, had you ever spent even five minutes contemplating Section 3 of the Fourteenth Amendment?  Virtually no one had.  Now, it’s all over the news — as it should be. 

The Colorado supreme court has ruled that Trump can’t appear on the state’s primary ballot. So has Maine’s Secretary of State.  Trump has appealed the Colorado ruling to the United States Supreme Court.  SCOTUS has agreed to hear the case next month.

The Fourteenth Amendment was, of course, one of three landmark amendments passed in the aftermath of the Civil War.  Some historians say their passage constituted a second founding of the republic. The amendments abolished slavery, said that no citizen could be barred from voting because of race, said everyone born in the United States was a citizen (that’s where “birth-right citizenship” came from), and potentially kept Confederate traitors from quickly returning to positions of power in state or federal government.  (Of course, women were excluded , and it has taken a long, long time for the amendments to apply fully to non-white citizens.  Still, that was the intent.)

Section 3 deals with the traitors.  It says: “No person shall . . .  hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath . . .  to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” 

The amendment doesn’t set out a process for keeping insurrectionists out of office.  Some legal experts, including the former federal appeals court judge J. Michael Luttig and the Harvard Law School scholar Laurence Tribe, who wrote a joint article about Section 3 for The Atlantic, argue that it is “self-executing: that is, it takes effect without any act of Congress – just as, say, the Second Amendment does.  You can argue that in the American system, states set up their own electoral processes, and that in Maine and Colorado, the 14^th-Amendment process is actively being defined. 

Others argue that an act of Congress is indeed required. It isn’t, lawyer and former six-term Colorado Congressman David Skaggs writes in The Hill.  “But if you want congressional action,” Skaggs argues, “it’s right there! Majorities of both the House and the Senate voted in 2021 in the second impeachment proceeding that former President Trump was guilty of exactly the conduct proscribed by 14:3, conduct clearly stated in the Article of Impeachment, which was titled ‘Incitement of Insurrection.’”  

Then there is the puzzle: Is the Presidency an “office of the United States”?  The answer seems obvious.  However, Section 3 doesn’t explicitly mention the Presidency, and some argue that means the Presidency is excluded.  A court may ultimately seize on that argument as a way to let Trump stay on the ballot, but as a matter of historical logic, it doesn’t pass the laugh test.

Does anyone sincerely believe that the drafters – and ratifiers – of the amendment, acting only a few years after the Civil War, meant to bar Confederate traitors from becoming, say, postmaster in Little Rock or a state senator in Tuscaloosa, but were happy to have him serve as President?  That’s not remotely plausible.

Officer or not, it’s true that Trump has never been convicted of insurrection.  But who cares?  The amendment doesn’t say anything about a criminal conviction.  That’s not a criterion. Skaggs calls the argument that Section 3 requires a criminal finding “a classic red herring.” (And even if Trump’s long-shot argument that he has complete immunity for any criminal act he committed while he was President finds a sympathetic court, it won’t immunize him against Section 3.)

Less far-fetched but legally as irrelevant as Trump’s immunity claim is the argument that keeping Trump off the ballot – and thereby denying millions of people the opportunity to vote for him – would be undemocratic. Yes, it would.  Under the Constitution, people don’t get to elect certain candidates.  That’s the point.  Is it basically undemocratic?  Yes.  And?  

People criticize the Senate as being undemocratic.  Indeed, it is.  Each state gets equal representation, two senators.  Therefore, everyone’s vote in Wyoming counts for more than anyone’s vote in California.  That’s obviously undemocratic, but it’s what the Framers intended.  Without that sop to small states the less-populous former colonies wouldn’t have ratified the Constitution.

The familiar qualifications for the Presidency would deny people the opportunity to vote for say, Elon Musk, who wasn’t born here.  If the Trump-backed canard that Barack Obama had been born in Kenya had turned out to be true, the nearly 70 million people who voted for Obama in 2008 would have been out of luck. Obama would have been disqualified.  (Trump has recently suggested that his rival Nikki Haley, the
American-born child of Indian immigrants, may also be ineligible to serve as President.)

“When a person criticizes Section 3 as undemocratic or undermining democracy, your answer should be simple,” David French has written in The New York Times. “Yes, it is undemocratic, exactly as it was intended to be. The amendment’s authors were worried that voters would send former Confederates right back into public office. If they had believed that the American electorate was wise enough not to vote for insurrectionists, they never would have drafted Section 3.”

A further question: Would disqualification make Trump supporters more bitter?  Yes, but then, they’re already bitter. And if Trump runs and loses fair and square, they and he will insist the election was stolen — just as they did last time.  So much for the argument that the best way to exorcise Trump and Trumpism from the body politic is to defeat him at the polls. After all, he was beaten at the polls four years ago.  How did that act of exorcism work out?

Would disqualifying Trump make some of his supporters more inclined to violence?  Yes, but some are already inclined that way.  See for example, the trashing of the Capitol on January 6. Or the recent breaking into and shooting up of the Colorado supreme court building.  Would disqualification create an all-but-unbridgeable political divide? That divide already exists.

And should the courts bend over backward to avoid criminal partisan violence?  “The Trump movement commits threats, violence and lies. And then it tries to escape accountability for those acts through more threats, more violence, and more lies,” David French writes in Vox. “At the heart of the ‘but the consequences’ argument against disqualification is a confession that if we hold Trump accountable for his fomenting violence on Jan. 6, he might foment additional violence now.  Enough! It’s time to apply the plain language of the Constitution to Trump’s actions and remove him from the ballot — without fear of the consequences.”

In its plain language and on its face the Fourteenth Amendment should keep Donald Trump off the ballot.  Section 3 “couldn’t be any clearer,” Judge J. Michael Luttig has told MSNBC. Will SCOTUS agree?  We’ll see. As Luttig suggests, there’s not much ambiguity. But some people can and do read ambiguity into it.  Which may give the court majority an easy off-ramp if it wants one.

Finally, the court couldn’t very well duck this case, and as a matter of public relations it just can’t win: whatever it decides, millions of Americans will condemn it for cowardice or over-reaching driven by partisanship.  

Not that the modern court is any stranger to placing a heavy thumb on the scales of a Presidential election. The court’s involvement in the 2000 Presidential contest between George W. Bush and Al Gore went a long way toward eroding the court’s justice-is-blind apolitical image.  The five justices considered Republicans essentially voted for Bush.  The four Democrats went for Gore.  Bush became President.  

Will the institutional memory of that public relations debacle influence the court this time around?  Let’s not forget that the Supreme Court is about to have three Bush v. Gore alumni sitting on the bench, and four of the current justices wound up on the winning side: Justice Thomas was part of the Bush majority, while justices Roberts, Kavanaugh, and Barrett were all working as lawyers on Bush’s side.

Will the current court — much in the news for its ideological zealotry, contempt for precedent, charges of personal corruption, and failure to inspire public confidence — rally to save this nation from itself? That seems a long shot.  But we can hope.