21 November 2023
Yes, Donald Trump’s attempt to incite an insurrection should bar him from running for president, but no judge would have the courage to throw him off the ballot.
As we approach the holiday season, I hate to be the bearer of bad news, but Section Three of the Fourteenth Amendment is prohibited by Donald J. There won’t be eight days of riding on a pumpkin-spiced rocket fueled sled to stop Trump from running. chairman.
I know what the law says. For those unaware: Section Three of the Fourteenth Amendment states that any person previously sworn to uphold the Constitution who engages in “insurrection or rebellion against the same” is ineligible to seek office again. Is. I know many people hoped that this provision would prevent Trump (and a group of other January 6 insurrectionists in Congress) from running for office again. But that’s not going to work and, at some point, liberals are going to have to stop engaging in magical thinking.
before we arrive Law Out of all this, we should be talking as adults about the real politics of what these Section Three lawsuits, which were brought in state after state to kick them off the ballot more and more, are asking the courts to do. Have been. The lawsuits ask some random state court judge (or federal judge or panel of judges) to rule that the most popular Republican in the country is ineligible to run for president according to state election laws and the Constitution. They ask judges to tell people who want to vote for Trump that they are not allowed to vote for him, and they ask these judges to do so on their own authority and without the implicit endorsement of the Army of the Potomac or the 101st Airborne Division. Says to do so. , They want judges to do so, even if those judges know that any decision excluding Trump from the ballot would ultimately be appealed to the United States Supreme Court, which is filled with six justices chosen by Republican presidents. body, three of which were hand-selected. Chosen by the same person from whom they were supposed to start the ballot.
who does that? Which judge wants to functionally jeopardize his career as an impartial adjudicator for an issue that will surely be overruled by the Supreme Court as soon as possible? Again, real talk: What judge would want to do that, get overturned, and still need to hire extra security for the rest of his life because he ruled that he had a proven track record of inciting his followers to violence? A person with potential can’t run for office? People want judges to take all these risks based on a constitutional provision that has been functionally ignored for 150 years — and when it was used to bar Southern office holders who voted for secession , then it had to be implemented again by walking into the office. Literally an occupying army. come on. Judges are humans, not ChatGPT algorithms. The practical political reality of excluding Trump from the ballot was always going to force judges to find some legal, quasi-legal, or near-legal way to avoid doing so.
Once you understand this, you can understand why lawsuits – primarily brought by the nonprofit watchdog group, Citizens for Responsibility and Ethics in Washington (CREW), or other private citizens – have so far been completely Have failed. It’s not that these lawsuits falsify the Constitution: For what it’s worth, I’m convinced that Section Three should apply to Trump the same way it applied to Jefferson Davis. The problem is that no judge wants to smoke this, and even if they did, the Republican-controlled Supreme Court would never remove a Republican candidate from the ballot. Judges don’t have the courage to do this and, frankly, I don’t blame them.
Instead, judges—including a federal judge appointed by President Barack Obama—are using all their skills and legal tricks to try to uphold Trump. But Ballot paper. You can almost see their frustration in the various reasons they came up with for rejecting Section Three. Here is a brief description of some of them:
- In Florida, an Obama-appointed judge ruled that those who filed the lawsuit had no standing to challenge Trump’s inclusion on the ballot. In doing so, he sidestepped the question of whether Trump was able to attend the vote, or who would have the right to sue to stop him.
- A state judge in Michigan ruled that the state had no law barring Trump from running in the primary, and only Congress could decide whether he was eligible to run in the general election; This is convenient, because the Congress is controlled by many of the people who supported the rebellion in the first place. If Trump can’t run, there’s a whole bunch of congressmen who can’t run.
- A panel of state judges in Minnesota also ruled that Trump is eligible to run for office in the primary, but gave plaintiffs free rein to challenge him again if he makes it to the general election. It’s worth pointing out that these judges are focusing on primary ballot rules, when primary ballots are not actually the issue. If Trump is unfit to hold office, whether he is eligible to contest the primary election is entirely beside the point.
I don’t agree with any of these decisions, but you see what the judge is trying to do: avoid the issue and force someone else to make the decision. Still, last week’s decision in Colorado was the most pathetic version of this trend. In that case, the state court judge said Trump was “engaged in insurrection” but was not certain whether Section 3 applied to the president. I’m not making this up. The judge questioned whether acting as an “officer of the United States” (as is required to invoke section three) includes acting as President of the United States.
It’s the kind of thing you write when you know the right answer but you’re afraid of the consequences of that answer.
There are still pending lawsuits against Trump in 17 states, but with four losses already, I doubt there’s a judge in Arizona or Virginia who wants to be a hero. At this point, blocking Trump from the ballot seems like a way for a judge to get impeached by a Republican state legislature, not a way to prevent Trump from running as a Republican.
Even if there is a judge out there who has the courage to enforce the Constitution on a white guy from Queens, if you think state court judges are good at finding legal technicalities to avoid inconvenient decisions, then Wait until you see how professionals fare in the Supreme Court. Do it. There is no way on this round Earth that Chief Justice John Roberts could put himself and his court between Trump and the President-elect. I still worry that the Roberts Court will find some way to step in and block criminal prosecutions of Trump and his insurgent allies until the next election. The idea that this court would allow Trump to be voted off the ballot entirely is not even worth considering.
Simply put: Section Three asks too much of judges. It asks them to save democracy (e.g. to prevent traitors to democracy from coming back to power) by destroying democracy (e.g. to prevent voters from re-electing traitors if that is their wish). This is not something that judges or courts can do, even if they are acting in good faith, and it is not something they are willing to do when they are acting in bad faith.
“Swipe down left to see more authors”Swipe →
Trump is scheduled to appear on the ballot next November. He may be on the ballot from a jail cell, but he will still be on the ballot. Millions and millions of people will vote for him, even if he has attempted a coup and plans to take dictatorial powers if re-elected. And no one, certainly not any random judge, will come to save us and stop the Republican Party from trying to put pressure on us again.
The only way to stop him is to defeat him in the elections, defeat him in the Electoral College, and then defeat him and his forces when they try to overturn the election results. So I hope everyone rolls up their sleeves and tries to convince their family members not to make a feast for Trump this Thanksgiving because that’s the only way to stop him. Happy Holidays.