(Photo by Gage Skidmore via Wikimedia Commons/CC BY-SA 2.0 DEED)
Listen to this article:
Donald Trump and his hope to run for president in the 2024 U.S. elections have sparked heated debates since a Colorado advocacy group, Citizens for Responsibility and Ethics, brought forward a lawsuit on September 6, 2023, leaving out the former president from having his name on the ballot in this respective state. Their lawsuit was backed by Section Three of the 14th Amendment of the American Constitution, which Trump’s lawyers, along with some Republican supporters and scholars, challenged its applicability.
Colorado’s Secretary of State, Jena Griswold, urged the Supreme Court to take action in this matter, stating, “Coloradans, and the American people, deserve clarity on whether someone who engaged in insurrection may run for the country’s highest office.” Following Colorado’s footsteps, the Democratic Secretary of State of Maine, Shenna Bellows, has also ruled that Trump should be disqualified from primary elections in that state.
As a response to these state decisions and the upcoming election, on January 5th, the Supreme Court decided to take action on whether Donald Trump will be eligible for the primary ballot in Colorado. Additionally, a discussion is planned for February 8th to deliberate about his eligibility to run in the general election and hold office.
On the same day that Colorado made its decision, Trump took his stance at a rally in Sioux Center, Iowa, where he expressed his hope that the justice system fairly and justly interpreted the law, stating, “All I want is fair; I fought … hard to get three very, very good people in […] And I just hope that [they are] going to be fair, because, you know, the other side plays the ref.”
Nineteen other states have unresolved issues regarding Trump’s eligibility, demonstrating how pressing this legal and political scenario has become. The current Supreme Court evaluates this case as having a conservative majority of 6-3, including three appointees Donald Trump chose.
Circumstances Behind Ineligibility
What has led the states of Colorado and Maine to declare Trump ineligible rests on the storming of the U.S. Capitol by a mob of his supporters. This insurrection occurred at the U.S. Capitol on January 6th, 2021, in response to the Presidential election results. These states have declared that Trump engaged in the insurrection, with efforts to subvert the election and alter vote counts. Additionally, it is under the charges that Trump incentivized the idea of bogus slates (fake electors) of opposing electors and pressured Mike Pence – the former Vice President – to call for the march on the Capitol, violating the Constitution.
But what are the specific factors behind the events that occurred on January 6th, 2021, and why do they matter? The reason why this eventful day was so significant is that despite his defeat, instead of justly and democratically accepting his loss, Trump falsely claimed that he had won and tried to remain in power through the use of fraud and intimidation. Alongside his “team,” Trump attempted to utilize fake electors, which were bound to him, to substitute Biden electors and intimidate Vice President Mike Pence into discarding the votes from the specific states where Biden had prevailed.
Additionally, he incited tremendous violence through his supporters, which had at its aim impeding the smooth transfer of the presidency. A clear example of such violence lies in the speech made on the very same day of the insurrection, where Donald Trump spoke to his supporters about how he considered the election results untruthful and a theft from the radical left Democrats: “We will never give up, we will never concede. It [does not] happen. You [do not] concede when [there is] theft involved.”
The legal standing adopted by Colorado, Maine, and through political figures and scholars rests on Section Three of the 14th Amendment of the American Constitution. This section was made during the Civil War, and it aimed at preventing those who gave their word to “support the Constitution of the United States” from being in charge of government if they “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” It was not a penalty but a qualification measure for candidates who seek to run for U.S. president. Historically, there have not been any cases of people disqualified under this section who previously had charges or any trial in their standing, meaning that there is absolutely no need for a criminal conviction to take place under the 14th Amendment.
Mainly, what brought controversy to using the 14th Amendment for Trump’s case is connected to technicality and language. Some believe that this section cannot apply due to Trump not having necessarily made the specific oath of “supporting the Constitution of the United States” and that the Amendment did not encompass the office of the presidency. Others argue that this viewpoint is inconsistent with the language and intent of the Section since it would be very naive to assume that the Amendment would disqualify every other insurrectionist politician, except the most important and highest-positioning one: the President.
What Possibilities Are to Be Expected
Until the Supreme Court decides, a couple of possibilities could happen as a future consequence. There is a likelihood that the Supreme Court will uphold the Colorado decision, and according to Amanda Shanor, an assistant professor of Constitutional law at the University of Pennsylvania, this action would be “absolutely fatal” for Trump. If Colorado’s decision is maintained, his hope to achieve the U.S. presidency will end.
The second possibility is that the Court keeps Colorado’s decision only towards that specific state. Perhaps this possibility would be a flawed verdict if breaking apart the country and the hierarchy of power. However, the Supreme Court may disregard Colorado’s decision instead due to a disagreement over terminology and technicalities on what they interpret as “insurrection,” “engaging,” or “officer.” If this possibility happens, Trump will receive immunity and will be allowed to run for president.
Is Disqualifying Trump Anti-Democratic?
Through some people’s eyes, prohibiting Trump from running for U.S. president and being shown in the primary ballots is an offence against Democracy and people’s rights. This argument has been fiercely defended by Trump’s lawyers fiercely defend this argument, claiming that decisions from Colorado and Maine to disqualify the former president would “disenfranchise millions of voters […] and likely be used as a template to disenfranchise tens of millions of voters nationwide.” Chris Ager, a Republican chairman, defended such a positioning, arguing that such a rationale to, in his eyes, preventing people from voting is a “Soviet-style, banana republic argument.”
Many Republicans have been demonstrating their objections in this manner, more specifically regarding Section Three of the 14th Amendment. They argue the presidential office is not included under this legislation, that it is not a “self-executing” decision where states cannot make these conclusions by themselves, and infringes upon Donald Trump’s First Amendment rights.
When entering power, the President’s oath does not say they need to support the United States Constitution but rather to “preserve, protect[,] and defend” the country. Joseph Story further explained this matter in his piece, “Commentaries on the Constitution of the United States,” that the positions of senator, president and representative are not civil offices, but instead, are the government of the United States itself. In his eyes, Section Three is puzzling as to the presidential position, and the Supreme Court “should limit the clause to its historically verifiable meaning and scope,” which in this case would be connected with an insurrection closer to the Civil War event.
Under this logic, Trump’s lawyers do not view what happened on January 6th as an actual insurrection because it was not widespread, and there was not enough heavy weaponry. They argue that Trump did not actively engage in the episode — the extent of his “engagement” is protected by his right to free speech.
Gabriel Sterling, a Georgia election official, and Gerard Magliocca, an Indiana University law professor, better expand on this issue. Magliocca explains how some people think there is no strong support for using Section Three “in the case of a relatively small-scale riot compared to the [large-scale rebellion from the Civil War].” He adds that what occurred on the 6th of January was not an insurrection: “[it is] too far removed from the Civil War to be something considered a constitutional insurrection.” Since Donald Trump did not physically engage in the riot and only used words and speeches to incite it, there is a risk that such an “engagement” will not be sufficient to assume he was involved in the event.
Sterling defends the idea that the Supreme Court should leave the decision of whether Trump should be qualified to the voters as building a scheme of constitutional interpretation to block anyone from primary ballots is a “dangerous precedent.” Julian Davis Mortenson, a scholar of the Constitution and the U.S. presidency at the University of Michigan expressed his discouragement for the ineligibility of Trump as well as his fear of how there is a risk of using the insurrection clause for the goal of disqualifying a key candidate from office: “to call it insurrection for the Constitution is on the outer edges of what the term, I think, plausibly means.”
The democratic thing to do, according to Georgia’s Secretary of State, Brad Raffensperger, would be to allow the American people to choose for themselves the future of Trump and his future as president: “Denying voters the opportunity to choose is fundamentally un-American.”
Disqualifying Trump as an Imperative Move
On the other hand, many Americans strongly advocate casting aside Trump to protect the rule of law and the Constitution to which it stands. Allowing an unstable and unpredictable leader with an additional insurrectionist background is off the table. Ilya Somin, professor of law at George Mason University, further illustrates how disqualifying Trump is not undemocratic; it protects against authoritarian leaders who “are likely to undermine democracy itself if they come to power.” He adds that voting is not enough to protect citizens from a candidate who tried and can still try to undercut the electoral process if the opportunity arrives.
It is essential to understand that under a democracy, the measures to protect this system and its prosperity can limit some liberal values, including some individual rights and, in this case, citizens from voting for a candidate like Trump. Although these measures would technically constrain their rights, they would eventually protect the democratic system and the values and laws based on it. Richard Friedman, an expert on Constitutional law and the history of the Supreme Court at the University of Michigan, endorses this view by questioning what is the matter with such a constraint: “[That is] what constitutions do.”
In response to Trump’s lawyers arguing over the language used under Section Three and how the president is not considered an “officer” of the United States, Laurence Tribe, a member of the Harvard Law School, presents a notable stance of such an argument. Under Article II, Section 1 of the Constitution, the presidency is declared an “Office,” so “how can the holder of that Office not be an ‘officer’ of the United States under that very same Constitution?”. Trump himself called him an officer when he denounced the justice department for enforcing criminal convictions against his supporters and associates, Mike Flynn and Roger Stone. In a tweet, he wrote that such a measure was a miscarriage of justice and added how such a statement: “[I am] actually the chief law enforcement officer of the country.”
Legal scholar Mark Grabber reinforces the false argument of Trump’s legal team by emphasizing how no political figure that created the 14th Amendment wrote such a document. He considers that the presidential role would be excluded because there is no evidence that “any member of Congress, member of a state legislature, political activist, journalist or hopeless crank during the 1860s thought a president was not an officer of the United States.”
Maine’s Secretary of State Shenna Bellows also shares the arguments from the scholars mentioned above, saying not only how the Constitution states the president as an officer of the country, but “Section three requires no Congressional action to become effective.”
Charlie Sykes, an American political commentator, also confirms the debate regarding Trump’s case. He enlightens the listeners on how the United States is not just a democracy but a liberal constitutional representative democracy. In other words, the rule of law and the Constitution play crucial roles in this system; it is “not [only] about elections.” According to Sykes, Trump supporters will logically argue that those who “claim to be defending democracy are undermining democracy” simply because of the possible voting restrictions. Even though this can be a reasonable argument, what should be understood is that “yes, we are a democracy, but we are also a nation of laws.”
Arguing that such a move as disqualifying Trump for the U.S. presidency is anti-democratic is not a proper stance. For a president to be holding office under democratic principles, the candidate needs to be qualified by law to do so. What is anti-democratic is allowing people to choose a candidate who is not only unqualified under the Constitution to do so but has shown to disregard the basis and core of American principles of protecting the Constitution at all costs.
Trump’s encouragement in mobilizing and inciting the mob attack on the Capitol is indeed a true example of an insurrection; it is different than the Civil War, but it still brought chaos and violence to the country. With that said, the likelihood of him winning in the high court is strong considering how insecure the Supreme Court generally is — in limiting voter choice and individual rights, which are at the core of American values.
Problems Behind a Disqualification
The political dilemma that has reached the country’s door is whether it is right to allow voters to choose their leaders or if they should endorse that no one is above the law. In part, both choices are bound to produce an anti-democratic result in some sense.
Under the Constitution, all laws and rulings apply equally to everyone regardless of their status or political influence; under the democratic principle, what gives a government legitimacy is the fact that the people can decide who they want to lead the country. Another troubling circumstance with this case is that the U.S. Constitution does not address the definition of insurrection or the extent of presidential immunity. For this reasoning, there is a lot of interpretation and debate about what an insurrection is or what includes giving aid and comfort to the enemies.
Steven Levitsky and Daniel Ziblatt, co-authors of the book “Tyranny of the Minority,” share this reasoning by exposing how “we have no agreed-upon institutional mechanism in place, no electoral authority, no judicial body with precedent and practice that all the major political forces agree should be empowered to make this decision.” There is a possibility that the country will see 50 states with different rulings; even so, there is no measure that prevents Republicans from nominating Donald Trump as its leader. Despite the high debate and problems behind this political case, what is undeniable is the urgent need for the Supreme Court to intervene and make a final say on the matter — to allow Americans to vote consciously on whether Trump cannot run for U.S. president and to reduce confusion.
Closing this highly debatable and uncertain situation is complicated; however, a part of democratic life is making decisions that all citizens will not agree on and will, in some sense, restrict some actions or beliefs. Disqualifying Trump and following the rule of law should be the approach when dealing with an unpredictable leader whose actions and words encourage a dangerous precedent for liberal democracy in the U.S. The implications of this case have yet to happen, but the role of the Supreme Court in this matter is crucial. As a professor of law at the University of California, Richard Hasen defends, “Only a Supreme Court decision can alleviate that pressure and put to rest the radically divergent views about the meaning and application of Section 3 of the 14th Amendment.”
Edited by Bethlehem Samson
