Once again, you can't remove Trump for the ballot using the 14th Amendment


For someone who is not a big fan of Donald Trump, I find myself defending him more and more lately from stupidity. Here is a bad idea, but everyone in politics seems to be ordering double servings of bad ideas these days.

Apparently, there are some people in the United States who think the 2024 presidential election just isn’t focused on enough trials and legal arguments yet, and that the easiest and best way to ensure that Trump doesn’t return to the Oval Office is to have the secretaries of state in key states simply unilaterally declare him disqualified under the 14th Amendment because he led an insurrection against the U.S. government.

Yesterday, six voters in Colorado filed a lawsuit against Secretary of State Jena Griswold, in her role as the state’s chief elections official, contending that she must immediately disqualify former president Trump from the Colorado ballot based on the language of Section 3 of the 14th Amendment to the U.S. Constitution.

That section states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.

Griswold, a Democrat, issued a statement indicating she’s open to the argument but wants it resolved by the state’s courts: “I look forward to the Colorado Court’s substantive resolution of the issues, and am hopeful that this case will provide guidance to election officials on Trump’s eligibility as a candidate for office.”

Meanwhile, Brad Raffensperger, Georgia’s secretary of state, took to the op-ed page of the Wall Street Journal to argue that he doesn’t have the authority to disqualify Trump from the ballot — and other secretaries of state should tread carefully as well:

The 14th Amendment was a product of the Reconstruction era, immediately following the Civil War. It was written to keep former Confederate officials and leaders from regaining power by holding public office, and historians have questioned whether it was meant as a permanent standard. It went nearly unused after the 1870s until September 2022, when a state judge in New Mexico removed a county commissioner who participated in the Capitol riot of Jan. 6, 2021. Attempts to invoke Section 3 against the candidacies of Georgia Rep. Marjorie Taylor Greene and North Carolina Rep. Madison Cawthorn failed. Each of the cases required a decision in the courts. But activists are urging secretaries of state like me to bar Mr. Trump from the ballot unilaterally.

Remember, Raffensperger’s family received death threats because of the outcome of the 2020 election. He’s as far from a Trump fan, supporter, or crony as you can get. But how he feels personally about Donald Trump doesn’t matter in this situation. In his duties, he’s obligated to follow the law, the Georgia state constitution, and the U.S. Constitution:

For a secretary of state to remove a candidate would only reinforce the grievances of those who see the system as rigged and corrupt. Denying voters the opportunity to choose is fundamentally un-American. Since our founding, Americans have believed that a government is just when it has earned the consent of the governed. Taking away the ability to choose — or object to — the eligibility of candidates eliminates that consent for slightly less than half of the country.

Georgia has faced the cottage industry of election denialism and shut it down. The right side won in 2022. Rather than hiding behind lawyers and bureaucratic hurdles, Gov. Brian Kemp and I traveled the state. I told the story of 2018 and 2020 so voters could choose their candidate with confidence.

Attempting to keep Trump off the ballot in this manner is a bad idea. It is a bad idea because Trump has not yet been convicted of leading an insurrection. It is a bad idea because Trump has not yet been indicted on a charge of leading an insurrection; the indictment by Jack Smith is over fraud, conspiracy, and obstructing a congressional proceeding. The indictment in Georgia is for racketeering and conspiracy. This is not because prosecutors just forgot to indict Trump on this charge. It is because federal prosecutors “can’t prove Trump committed insurrection,” which, when you think about it, is a pretty darn big stumbling block.

Finally, attempting to block Trump from being listed as a candidate on the general-election ballot is a bad idea because if you want Trump and his philosophy defeated, then you want him defeated at the ballot box. Knocking somebody off the ballot on a technicality is no substitute for the American people saying, in large numbers through the process of voting, “No, we don’t want that option and that path ahead.”

A lot of people cannot comprehend this conclusion; there is a belief that if you oppose Trump, then you must oppose him in every way possible, and that any tool at hand should be used and that any option, no matter how legally or constitutionally dubious, must be utilized in the name of preserving the Constitution and the rule of law. (These are often the same people who contend that Trump is a threat to democracy because of his disregard for historical norms.)

I recognize the frustration that so many Republicans believe the 2020 election was illegitimate. A CNN poll conducted in July found that 69 percent of Republicans and Republican-leaning respondents say President Biden did not legitimately win. That’s actually down slightly from the 72 percent who said so in the summer of 2021. The survey found that, overall, 61 percent of Americans say Biden did legitimately gain enough votes to win the presidency, and 38 percent believe that he did not.

And yes, if Trump loses the 2024 election, many of his supporters will insist that he won, even if Biden or some other Democrat wins in a landslide. The stubborn insistence that the losing candidate actually won, and that a vast conspiracy of election workers operated in secret to alter the vote counts, is not an election analysis or a legal argument, it is an emotional coping mechanism. You can’t reason a man out of a position that he didn’t reason himself into in the first place.

Republican Mark Finchem, who ran for secretary of state in Arizona in 2022, contended that Joe Biden could not possibly have won the state of Arizona in 2020 because “I can’t find anyone who will admit that they voted for Joe Biden.” That’s his evidence for the election being stolen. Either Finchem has yet to encounter 1,672,143 Arizonans who preferred Biden to Trump, or 1,672,143 Arizonans will do anything to avoid talking to Finchem. People like him operate in a mental state that is hermetically sealed; every piece of evidence that the election was legitimate gets reinterpreted as further evidence of the vastness of the conspiracy to steal the election.

But if you start bending and twisting the interpretation of the Constitution and the definition of terms under the law to get the candidate you oppose off the ballots, then the conspiracy theorists win. Because under that scenario, you really are altering the law to ensure that a certain candidate loses. And you can’t begrudge a Trump fan for looking at all this and concluding, “They’re scared. They figured Biden would be a slam dunk for reelection, but he’s old and decrepit and people are frustrated by the cost of living and the state of the economy. They’re trying to remove Trump from the ballot because they know Trump will beat Biden.”

As usual, partisans on both sides are walking around with way too much faith that the weaknesses of the other guy will be enough to put their guy over the top in November 2024. This time, Trump has the good luck of running against a cadaver escaped from a D.C.-area medical school. Trump may be a horrific candidate, but he only has to be one Electoral College vote less horrific than the guy he’s running against — the president who is barely there.

Disqualifying a candidate from the ballot is a big deal and shouldn’t be pursued willy-nilly. Candidates should only be disqualified when their ineligibility is clear — say, not meeting the age or residency requirements. At least Colorado’s Griswold has the good sense to recognize she doesn’t have the unilateral authority to declare that candidates are disqualified under the 14th Amendment, and that some adjudication of the charge is required.

The country has a lot of big problems on its plate. People are still reeling from the high inflation of last year and struggling to keep up with the cost of living. Grocery prices are still high, gas prices are still high, and housing costs are still high. The southern border isn’t secure, and even Democratic governors and mayors are furious with the Biden administration for the wave of migrants on their doorsteps. The learning loss from the pandemic still bedevils our kids. Despite continued outreach and concessions by the Biden administration, the government of China under Xi Jinping remains as belligerent as ever, and the economic pressures of that country may make it more rather than less dangerous than before. Then there’s that de facto ongoing proxy war between Russia and NATO in Ukraine. And despite the fact that there’s a bipartisan consensus to just not worry about the deficit and the debt anymore, we’re on track to run up a $2 trillion deficit this year during a period of relative prosperity and stability.

I see a lot of evidence for a strong argument against reelecting the incumbent Democrat. But apparently, much of the 2024 presidential-election coverage will be focused on courtrooms and evoke the mania of the O. J. Simpson trial.

Dan Butcher

Dan Butcher (aka HP Pundit) is not a Democrat or Republican. He is a free thinking independent bringing you news and commentary with a dose of much needed common sense.

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