[ Keeping Trump off the ballot would be an affront to democracy.
Denying people the opportunity to vote for him is going to make him
stronger.]
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FIRST THINGS FIRST: DON’T OPPOSE TRUMP’S RIGHT TO RUN  
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Bill Lueders
December 21, 2023
The Progressive
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_ Keeping Trump off the ballot would be an affront to democracy.
Denying people the opportunity to vote for him is going to make him
stronger. _

Former President Donald Trump speaking with supporters at a campaign
rally at the Prescott Valley Event Center in Prescott Valley, Arizona,
2016, (Gage Skidmore, CC BY-SA 2.0 DEED)

 

Many people across the land are cheered by efforts to address the
threat that Donald Trump poses to American democracy by attempting to
keep him off the presidential ballot. Legal actions seeking to make
this happen have been launched in Colorado
[[link removed]], Michigan
[[link removed]],
and Minnesota
[[link removed]],
and may be pursued in other states.

Trump, the argument goes, has disqualified himself from holding public
office under a seldom-invoked clause in the Fourteenth Amendment
[[link removed]], passed
[[link removed].] in
the aftermath of the Civil War, barring those who have “engaged in
insurrection or rebellion against” the United States.

“The evidence is overwhelming that Donald Trump incited and
mobilized the insurrection on January 6, 2021, at our nation’s
Capitol,” said
[[link removed].] Alexandra
Flores-Quilty, campaign director for Free Speech for People, one of
the groups behind these efforts. “Election officials must carry out
their duty, follow this Constitutional mandate, and bar Trump from the
ballot.”

It is a quest doomed to fail, because the U.S. Supreme Court’s 6-3
conservative supermajority, including three Trump appointees
[[link removed]],
will never allow it. But it is also, in my opinion, a terrible
idea—one that plays directly into Trump’s hands as an example
[[link removed]] of
real, as opposed to imagined, “election interference” by his
political foes.

Supporters of this idea are jazzed by a report
[[link removed]] from
two conservative law professors and Federalist Society members,
William Baude and Michael Stokes Paulsen, contending
[[link removed]] that
Section Three of the Fourteenth Amendment “requires no legislation,
criminal conviction, or other judicial action” in order to be
enforced. In their view, it’s enough that Trump sure seems to have
crossed this line.

But maybe there is a reason to question their judgment, as would
surely be advisable if they were weighing in on anything else. Not
only has Trump not yet been convicted of insurrection, he has not even
been charged with it. Special Counsel Jack Smith, presented with the
reams of evidence churned up by the House select committee
[[link removed]] that
spent months looking into the matter, decided against
[[link removed]] charging
Trump over his actions and inactions on January 6. Instead, Smith
focused on Trump’s other efforts to subvert the election result,
such as the scheme to anoint fake electors
[[link removed]].

Elie Mystal, writing
[[link removed]] in The
Nation in early August, shortly after this charging decision was
announced
[[link removed]],
argued that Smith made a reasonable judgment call: “He’s got
Trump, dead to rights, on obstruction; he doesn’t have him on
insurrection. Smith is working with the laws and the evidence he has.
If he could make a rock-solid case for sedition, I think he would have
charged it. He couldn’t, so he didn’t.” Mystal felt this closed
the book on efforts to invoke the Fourteenth Amendment against Trump.

But then professors Baude and Stokes Paulsen published their piece,
which was heartily seconded by J. Michael Luttig, a retired federal
judge, and Laurence H. Tribe, professor emeritus of Constitutional law
at Harvard. The pair wrote an article
[[link removed]] in The
Atlantic saying Trump’s role in the January 6 attack “place[s]
him squarely within the ambit of the disqualification clause, and he
is therefore ineligible to serve as President ever again.”

That Trump is within the clause’s ambit does not make it any more
likely that the Supreme Court will agree to disallow him from running.
There is still a strong counterargument to be made that, for the
clause to apply, Trump would need to be adjudicated guilty of
insurrection. That hasn’t happened, and it likely won’t.

Even if it were legally possible to keep Trump off the ballot, I
believe doing so would be an affront to democracy. If the people of
this country want to elect a President as manifestly corrupt and unfit
as Donald Trump, that is their right. Letting voters make bad
decisions is the essence of democracy.

The threat that Trump poses to American democracy is real. As
President, he displayed utter contempt for democratic principles and
institutions, cozying up to dictators and using
[[link removed]] the
presidency to enrich himself and his family of grifters. He’s called
for terminating
[[link removed]] parts
of the Constitution he doesn’t like and has vowed
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in seeking a second term, to exact “retribution” on his political
rivals, which he’s acknowledged
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include locking them up.

Trump is now facing
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total of ninety-one felony counts in pending criminal prosecutions in
four separate jurisdictions for his egregious misconduct before,
during, and after his time in office. This is in addition to his being
found civilly liable for sexual abuse
[[link removed]] and business
fraud
[[link removed]].
In each case, he has been afforded every last ounce of due process to
which he is entitled, and then some.

In the pending cases, it sure looks as though Trump is guilty as
charged. But these are questions for juries and not pundits to decide,
just as the decision on whether Trump should be returned to the
presidency ought to rest with voters—not those who don’t trust
voters to vote the right way.

“Denying voters the opportunity to choose is fundamentally
un-American,” wrote
[[link removed]] Brad
Raffensperger, Georgia’s Republican secretary of state and one of
the targets of the November 2020 pressure campaign
[[link removed]] for
which Trump and more than a dozen others have been criminally charged,
in a Wall Street Journal op-ed. Doing so “would only reinforce the
grievances of those who see the system as rigged and corrupt.”

Of course it would. That’s why the courts have already made it clear
that they will not permit this.

In 2022, efforts to invoke the Fourteenth Amendment to boot then
Representative Madison Cawthorn, Republican of North Carolina, and
Representative Marjorie Taylor Greene, Republican of Georgia,
were rejected
[[link removed].] by
[[link removed]] judges
at the federal and state
[[link removed].] level,
respectively. (Cawthorne, an “attention-seeking embarrassment” who
bizarrely claimed his fellow Republicans attended orgies and used
cocaine, was soon after defeated
[[link removed]] in
a primary election.)

A New Mexico state judge did remove
[[link removed]] a
county commissioner from office for taking part in the January 6
attack on the Capitol, citing the Fourteenth Amendment. But in that
case, the commissioner, “Cowboys for Trump” founder Couy Griffin,
had been convicted
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a crime for entering and remaining in a restricted building.

In 1920, Socialist Party of America candidate Eugene Debs ran
[[link removed]] for
President from prison and garnered almost one million votes. At the
time, he was serving a ten-year sentence for violating the Sedition
Act by making
[[link removed].] an
anti-war speech. The Fourteenth Amendment was not trotted out to deny
his right to run.

Trump, in his constant craving for victimhood, is eagerly using
attempts to keep his name off ballots to rally his supporters and
raise cash. Here’s how he expressed it, in his inimitable way, in a
Truth Social post
[[link removed]]:

“Almost all legal scholars have voiced opinions that the 14th
Amendment has no legal basis or standing relative to the upcoming 2024
Presidential Election. Like Election Interference, it is just another
‘trick’ being used by the Radical Left Communists, Marxists, and
Fascists, to again steal an Election that their candidate, the WORST,
MOST INCOMPETENT, & MOST CORRUPT President in U.S. history, is
incapable of winning in a Free and Fair Election.”

Trump’s lawyers, meanwhile, insist these efforts violate his First
Amendment rights.

“At no time do Petitioners argue that President Trump did anything
other than engage in either speaking or refusing to speak for their
argument that he engaged in the purported insurrection,” wrote
[[link removed]] attorney
Geoffrey Blue in reply to a lawsuit to bump Trump from the ballot in
Colorado. Blue also made a bid for inclusion in the Hair-Splitters’
Hall of Fame by arguing that “the Fourteenth Amendment applies to
one who ‘engaged in insurrection or rebellion,’ not one who only
‘instigated’ any action.”

A Colorado judge rejected
[[link removed]] this
attempt to dismiss the lawsuit on these grounds. But no matter what
fate such defenses meet in the state and lower federal courts, they
will undoubtedly give the Supremes the cover they need to shoot down
any challenges to Trump’s ability to stay on the ballot.

Donald Trump is a charlatan and a huckster and a clown. As President,
he bungled
[[link removed]] the
pandemic, added
[[link removed]] $7
trillion to the national debt, stacked the Supreme Court and entire
federal court system with rightwing extremists, and played the fool in
his every appearance on the world stage. In 2020, the American people
voted him out of office. Since then, he’s been impeached a second
time over the events of January 6 and his court picks have ended
[[link removed]] the
Constitutional right to abortion, neither of which improve his
electoral prospects. Meanwhile, Trump’s actions have become
increasingly deranged, even including casually threatening the life
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nation’s highest military commander.

I have to believe that, given the chance, the American electorate will
reject Trump again. Of course, there’s no guarantee, but trying to
prevent this by denying people the opportunity to vote for him is
going to make him stronger, whether he wins or loses.

Let’s all work to make the 2024 election as free and fair as
possible and encourage everyone to vote. But the defense of democracy
cannot, and should not, include depriving people of the right to vote
for the candidate of their choice. Our focus as progressives ought to
be on keeping Donald Trump from winning, not keeping him from running.

_Bill Lueders, former editor and now editor-at-large of The
Progressive, is a writer in Madison, Wisconsin._

_Since 1909, The Progressive has aimed to amplify voices of dissent
and those under-represented in the mainstream, with a goal of
championing grassroots progressive politics. Our bedrock values are
nonviolence and freedom of speech._

_Based in Madison, Wisconsin, we publish on national politics,
culture, and events including U.S. foreign policy; we also focus on
issues of particular importance to the heartland. Two flagship
projects of The Progressive include Public School Shakedown
[[link removed]], which covers efforts
to resist the privatization of public education, and The Progressive
Media Project [[link removed]], aiming to diversify our
nation’s op-ed pages. We are a 501(c)(3) nonprofit organization. _

* presidential elections
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* Donald Trump
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* Donald Trump; Election 2024; Threat of Fascism; Insurrection Act;
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* democracy
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