[The harsh reality is that the only way to get past this crisis
for our democracy is to go through it. Our institutions were built to
survive this, but only if we use them. Abdication, capitulation,
surrender? That’s how we guarantee democracy loses.]
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THE SUPREME COURT SHOULD DECIDE TRUMP’S BALLOT ELIGIBILITY WITHOUT
FEAR OR FAVOR  
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Ian Bassin
December 20, 2023
Protect Democracy
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_ The harsh reality is that the only way to get past this crisis for
our democracy is to go through it. Our institutions were built to
survive this, but only if we use them. Abdication, capitulation,
surrender? That’s how we guarantee democracy loses. _

,

 

On Tuesday, the Colorado Supreme Court held that Donald Trump engaged
in insurrection under the terms of Section 3 of the Fourteenth
Amendment to the Constitution. Therefore, the court held, he is as
ineligible from serving as president as if he was not yet 35 years old
or not a natural born citizen, two other constitutional requirements
for holding the presidency. 

This decision has raised a lot of questions, both legal and political,
about what this means for our democracy, for the election, and for the
U.S. Supreme Court. It has generated and will continue to generate no
shortage of speculation about how we as a nation and our institutions
should meet this moment. Before getting into an analysis of that here,
let’s start with two facts on which there should be broad agreement:
First, we are only in this situation as a nation because of Donald
Trump and his actions. To the extent the nation is at a difficult
crossroads, we have Trump to blame. But for his actions, none of this
comes to pass. Second, he brought this all upon us because he refused
to accept defeat when he lost the 2020 election and his continued
refusal to accept that he lost is straining our institutions and our
civic fabric.  

Now that he has put us all in this situation, the U.S. Supreme Court
– and especially the Roberts majority – has a real dilemma on its
hands. It has advertised itself as being a textualist and originalist
court, in which the words say what they mean and were intended to mean
when adopted. And as several Federalist Society aligned law
professors have written persuasively
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Judge J. Michael Luttig, who comes out of the same legal school of
thought as the Supreme Court majority, has argued
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the meaning of Section 3 of the Fourteenth Amendment by its terms and
intent was to bar someone who did what Donald Trump did from holding
office again. 

Read more: Trump Prosecutions and the Rule of Law
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So if the Court is just applying the law, then a straight read of the
law requires them to uphold the Colorado decision.

But of course the Court does not exist in a vacuum. As Jesse
Wegman wrote
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New York Times_, 

“As the justices in Washington weigh these matters, they will no
doubt be aware of the political unrest surrounding them. They know
that Mr. Trump has built a large political following and is marshaling
his followers to turn against the justice system for indicting him, to
intimidate law enforcement officials and court personnel and anyone
else who gets in his way. They are aware that he will whip his
die-hard followers into a frenzy against the Supreme Court itself,
just as he unleashed his followers to try to bend Congress to his will
on Jan. 6.”

So the question for the Supreme Court is as much about the Fourteenth
Amendment as it is about whether the rule of law or the rule of the
mob is the governing order of our land.  

Faced with that question, there can only be one answer: the Court must
apply the law without fear or favor.  

Some are already blanching at that possibility and have raised a
number of good faith and in some cases bad faith objections. So
let’s take them in turn.

The Objections to the Colorado Decision

The FIRST OBJECTION is that the Court disqualifying Trump from
running might not be the best outcome for the country and that if
Trump is to be denied the presidency, better it comes at the hands of
voters. This argument rests on the assumption that Trump’s
supporters would be more likely to accept a defeat at the ballot box
than a disqualification in court.   

But that assessment is belied by the evidence. His supporters got a
chance to accept his defeat at the ballot box in 2020 and in large
numbers refused. Letting the voters throw him out, so to speak, led to
a violent insurrection and him running again on an even more openly
authoritarian platform. It’s unclear why those making this argument
expect anything different to happen if he loses at the ballot box this
time. In all likelihood, having had several years to rally his base
into even greater distrust of elections and our institutions, their
reaction to a Trump electoral loss in 2024 is likely to produce an
even more destructive reaction than in 2020. That is hardly something
for the Court to defer to. 

A SECOND and related concern is a more small-d democratic one: that
as a matter of governing philosophy it should ultimately be up to
voters to decide who the president should be, not courts. That may be
a reasonable political theory, but it is decidedly not what the
American Constitution lays out. The Constitution has numerous gating
requirements for the presidency: a 35-year-old age requirement and the
requirement that candidates be natural born citizens are just two of
them. Earlier this month, the Republican Secretary of State in
Arkansas barred
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talk show host Cenk Uygur from appearing on their presidential ballot
because Uygur was born overseas. There were no howls of protest from
those objecting to the Colorado decision. 

That the experience of the Civil War led the United States to add an
additional restriction against those who have so grossly violated an
oath to the Constitution they once took from being able to serve again
is a reasonable decision for us to have made to avoid a repeat of that
tragic era. We could decide as a country to remove that restriction by
amending the Constitution (or Congress can override it by a two-thirds
vote in individual circumstances under the very terms of Section 3),
but short of that, simply nullifying or ignoring it makes no more
sense than nullifying or ignoring the First Amendment or the Equal
Protection Clause if a bare majority of people at a single moment in
time prefer that.

And let’s not forget, if Trump’s argument is that the majority of
voters should ultimately determine the president full stop, he
wouldn’t have become president in 2016, when the majority of voters
preferred his opponent.

A THIRD objection is rooted in a fear of violence. But surely as a
nation we do not believe violent mobs should be able to intimidate
courts into declining to apply the law. We have already read reports
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Members of Congress may have declined to vote to impeach and/or
convict Trump after impeachment out of fear that doing so might
subject themselves or their families to violent retaliation by
Trump’s most extreme followers. Do we really believe the violent mob
he has stirred up should be able to now intimidate a second branch of
government to bend its knee to Trump?

But even if one believes the Court _should_ take the risk of
violence into account, Trump’s most extreme supporters are
unfortunately just as likely to engage in violence if he loses at the
ballot box. They’ve already shown that in 2020. And worse, experts
on political violence warn that violence can be more pronounced when
autocrats win than when they lose. When they win their most violent
supporters feel empowered and protected. So if a faction within
Trump’s base may be prone to engage in violence if he wins or if he
loses, should the Court contort the law to defer to that? 

A FOURTH objection is procedural: that Trump has not been afforded
“due process” and should not be deprived of an opportunity to run
without that. This objection is wrong as a matter of both facts and
law. On the factual side, Donald Trump is a party in the Colorado
case! There was a five-day trial in the case in which Donald Trump
was able to make both factual and legal submissions to the court.
Trump will be able to make his case to the U.S. Supreme Court just as
he’s been able to make his case in the Colorado courts. As a legal
matter, critics raising this objection are conflating the rights our
system affords to criminal defendants with the rights our system
affords in non-criminal proceedings. Holding office is a privilege,
not a right. One’s eligibility to do so is therefore subject to a
lower standard of procedural protections than we give to people whom
the system seeks to deprive of their very freedom.

There is fairly broad legal consensus that Section 3 of the 14th
Amendment does not require a criminal conviction for a crime of
“insurrection” to apply. As CREW (who brought the Colorado case on
behalf of several Republican voters) notes in a report
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of the seven historical precedents of people being disqualified under
Section 3, not one of them “was charged under the criminal
‘rebellion or insurrection’ statute (18 U.S.C. § 2383) or its
predecessors.” Section 3 imposes a civil consequence, not a criminal
penalty.

It therefore does not require the same procedures that Donald Trump is
entitled to in his criminal cases. He’ll get those protections in
the four cases in which he’s been criminally indicted on 91 felony
counts. But the Colorado case is a civil question of legal
interpretation for which Trump is receiving the same due process
protections that every candidate for office receives when their
eligibility is challenged – something that frankly happens across
the country in lower-stakes cases all the time
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A FIFTH objection is that the Colorado case and subsequent
proceedings in the Supreme Court are bad for the country because they
are politically helpful to Trump, and since he has shown himself to be
a danger to the Republic, anything that helps him is bad for the
country. There’s likely some truth to the fact that civil and
criminal cases against Trump that he can use to paint himself as a
victim are helpful to him in the Republican primary. But the general
election is a different story. History and international
experience show
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accountability for gross abuses of power tends to _reduce_ the
chance of those abuses continuing into the future. In the US, in our
laboratories of democracy, when state chief executives have been held
accountable for abuses of power, the legal process playing out has
actually been the thing that ultimately lessens their political
support
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In short, our system tends to work when it is applied. 

And a FINAL objection is that the U.S. Supreme Court is almost
certainly going to overturn this decision and so it has been a
misguided effort and distraction to pursue this path at all. I’ll
admit, a version of this objection informed why we at Protect
Democracy declined to bring one of these cases. That and a concern
that disqualifying candidates from the ballot is a tool that can be
misused and has been by autocrats overseas and we should not unsheath
that sword if the case was likely to ultimately fail. But that ship
has sailed. And there’s a compelling counterargument that any law
can be misused but that’s not a sufficient reason not to apply it in
the situations for which it was properly intended.

While speculation about how the Supreme Court will rule in any case is
a popular pastime, it’s premature to declare that anyone knows what
the Supreme Court will ultimately do. Sure, there are two justices who
will use this case in whatever way they think will most benefit Donald
Trump. Clarence Thomas and Samuel Alito are such loyal foot soldiers
in the Trumpist March on Rome that they’ve effectively traded in
their black robes for red hats. But the other seven justices may be
harder to predict here. Beyond the earlier points about textualism and
originalism, the other seven justices have repeatedly declined
invitations to step in and help Donald Trump in cases in which his
personal interests are before them. Unlike Members of Congress who
must frequently run for office before a Trumpified GOP primary
electorate, the justices are not as subject to that pressure. And as
we’ve seen among retired Republican office holders, when no longer
faced with the need to run in a GOP primary, they are much more
comfortable calling Trump out for the insurrectionist he is. 

Read more: Trump’s indictment for conspiring to hold onto power is a
step forward for democracy
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Beyond the merits, though, one potential upshot of this case is that
it might – and it should
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force the Court to realize that it cannot avoid playing a role in the
2024 election and the sooner it resolves all of the relevant cases,
the better.

The harsh reality is that the only way to get past this crisis for our
democracy is to go through it. We can’t avoid the calamity Trump has
created. And twisting our institutions into pretzels to bend to his
corruption just capitulates to him in advance. Our institutions were
built to survive this. But only if we use them. Only if they do their
jobs. Abdication, capitulation, surrender? That’s how we guarantee
democracy loses.

This Case is a Feature of our System, not a Bug 

Rather than view the current legal situation with regret, we should
view this as the system working. Yes, there’s one view of this
situation that it is really unfortunate and almost untenable for the
Court to be put in this position. That view, which the Justices may
be thinking, is that it would be profoundly problematic for the Court
to intervene in an election in this way and deprive the people of
their choice of candidate. That is the view that sees checks and
balances as a bug in the system, rather than a feature.  

But that’s precisely upside down. The Founders intentionally created
three branches that would check and backstop each other as the best
safeguard against tyranny. If, for example, the legislative branch in
some way failed to safeguard self government — if, for example, it
was so captured by a faction that it failed to convict an impeached
president for inciting an insurrection — then there would be a
backstop: one of the other branches, either the executive and the
courts through prosecution and conviction and/or the courts through
implementation of constitutional backstops.  

The Court upholding the Colorado Supreme Court decision, even in the
face of extreme political pressure to do otherwise, would be the
greatest vindication of the American Constitutional system and the
founders’ invention.

The notion that because the political branches or even the voters
caught up in the heat of temporary passions have declined to stop a
tyrant, the courts should as a result step aside ignores the
fundamental genius and design of the system the Founders built: which
is one of overlapping checks against tyranny. 

The Colorado case is a feature, not a bug, and the Court upholding the
Colorado Supreme Court decision, even in the face of extreme political
pressure to do otherwise, would be the greatest vindication of the
American Constitutional system and the founders’ invention. If one
believes, as the Court majority does, that the Framers were indeed
inspired, this is their chance to show fealty to that design. Not when
it’s easy, but precisely when the Founders hoped they would in
providing them life tenure: when it’s hard. 

The Real Political Import

But whatever the Court decides, the American electorate now has a new
fact before it: again, from _The New York Times_: “A state Supreme
Court has found that Donald Trump engaged in an insurrection in his
efforts to overturn the 2020 election by inciting a violent mob to
attack the Capitol and is therefore disqualified from serving again as
president.” Regardless of how this section of the Constitution is
ultimately interpreted and applied, “Shouldn’t both major parties
insist on presidential candidates for whom such questions are not even
remotely at issue?”

Because at the end of the day, we as voters want to keep our power to
govern ourselves. Above all else, we don’t want someone who imposes
his will, his interests, his power over ours. We fought a revolution
to be free of such tyranny, and fought a civil war to add protections
against it like the one at issue here. And if our system is stepping
in here to protect our power to self govern thanks to the ultimate
sacrifices made by so many patriots who came before us, that is
something to be celebrated.

_Ian Bassin is co-founder and Executive Director of Protect Democracy.
He previously served as Associate White House Counsel, where he
counseled the President and senior White House staff on administrative
and constitutional law._

* democracy
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* Donald Trump
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* Supreme Court
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* presidential elections
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