Trump on the Ballot: Should the Courts or the People Decide?
If preventing an insurrectionist from retaking power is your overriding objective — especially if that insurrectionist vows to abuse state power even more, like an autocrat — what is your wisest course of action?
If ever Solomonic wisdom were needed, it is now.
The question — to allow or to disallow Donald Trump on state primary ballots, enroute to November’s national election for the presidency — has the potential to reshape the election itself. Solomonic wisdom is not much evident these days, but that’s no reason we should not still seek it. This commentator on this question seeks it — desperately. Why “desperately”?
Because: Everything in me says “Heck, no” — make that “Hell, no!” — to the very idea of allowing on any ballot, anywhere, any leader, most especially the President of the United States of America, who took the sacred oath of office to “protect and defend the Constitution” and then betrayed that oath in a Constitution- and democracy-damaging way.
Which Trump most certainly did: He incited an insurrection on the seat of Government itself — the U.S. Capitol — to stop his successor’s certification. Factuality, like Solomonic wisdom, is also not much evident anymore. But what happened January 6, 2021 was — in fact — insurrection, not “legitimate political discourse” or a sightseeing tour as Trump supporters claim.
Yet: Why am I so, so, so leery that, while on the facts and on the law, disallowing Trump from state primary ballots and barring him from running again for president would be justifiable and sound, yet on the politics and, well, stone-cold reality, it would be unwise in the extreme, even catastrophic — in other words, un-Solomonic?
Why does this thought keep cycling: You can be right, even righteously so, and yet dead wrong?
Initiating this train of events was the Colorado supreme court ruling, on December 19, that struck Trump from that state’s primary ballot, based on the Fourteenth Amendment, Section Three, which bars insurrectionists running for office. This bombshell was soon seconded by Maine’s secretary of state, citing the same legal basis. But: The day before Maine, Michigan’s supreme court ruled Trump could appear on its ballot. Instantly, John Q. Public could see: If every state determines eligibility, with 50 states we would soon have that bane called “kludge,” defined as a “haphazard or makeshift solution to a problem.” “Haphazard,” “makeshift”: You think?
Meanwhile, the nation’s commentariat Googled the Fourteenth Amendment, to get smart fast. Enacted in the Civil War’s wake and designed to prevent Confederate secessionists from retaking power, Section Three bars from public office anyone who, “having taken an oath,” then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Passed by Congress in June 1866 and ratified July 1868, the Amendment extended to formerly enslaved people the Bill of Rights, which rights cannot be removed without “due process.”
And now the U.S. Supreme Court will hear the Colorado ruling, on February 8. Veteran analyst Adam Liptak of The New York Times speculates the Court “may well look for some narrow, technical way to leave [Trump] on the ballot without…ruling on whether he was an insurrectionist.” Rather than a Colorado-only ruling, “probably they will rule in a way that controls every single case in every single state.” Contra its preference, politics will factor in: The Court cannot be seen deciding another election, like Bush v. Gore in 2000. Yet: “Whatever they do on this question of eligibility,” writes Liptak, “half the country is going to be furious.”
To allow or disallow Trump on state primary ballots: Thinkers throng to the question.
Notable among legal voices: conservative judge J. Michael Luttig and liberal scholar Laurence Tribe, with their influential Atlantic essay, “The Constitution Prohibits Trump From Ever Being President Again.” While “social unrest and even violence” may arise, they write, “to engage in this constitutionally mandated process” — in the courts — is vital. They hope the Supreme Court can avoid “political temptation.” Many others agree (here and here). Conversely, law professor Samuel Moyn in his Times essay, “Barring Trump from the Ballot Would Be a Mistake,” argues that we save democracy by practicing it: Let the people decide.
Political commentators might be expected to opt for letting the people decide, but a surprising number, by my survey, opt for the courts. The Times’ Jesse Wegman notes the “terrifying large faction of voters” who find Trump’s role in the insurrection, not to mention his four criminal trials, “not only not disqualifying, it’s one of his key selling points.” Atlantic’s Adam Serwer agrees: “Ignoring the Constitution to please [Trump] supporters would be a complete breakdown of the rule of law.” Jackie Calmes of The Los Angeles Times asks, What would it say about a democracy based on rule of law it if didn’t hold Trump accountable? These political writers argue on principle; as one myself, so do I — usually. Yet why does my head throb with doubt?
So: Where am I on the wisdom I seek…? Slouching to the Solomonic, I must go with my doubt.
Much as I admire the legal acuity of Luttig and Tribe and am impressed with the politically symbolic teaming of conservative and liberal in our deeply polarized times, rereading their argument in favor of letting the courts have the last word on deciding Trump’s eligibility ran aground on that fear cycling in my mind: “You can be right, even righteously so, and yet dead wrong.”
The test? In the tinderbox that is now America, try selling that argument to Trump supporters, that huge chunk of the electorate that already believes “the system is rigged.” Were the Supreme Court to take a maximalist approach and disqualify Trump from all state primary ballots (not likely), or were more states to do so (very likely), there would be anarchy and, possibly, blood. While Luttig and Tribe acknowledge “social unrest and even violence” could arise and they “pray” (their verb) that it not happen, prayers would be useless.
So would be any legal argument: useless. In this tinderbox, all is political now. Example: The legal point that Section Three of the Fourteenth Amendment is “self-executing” — that is, on the question of insurrection, neither prior conviction nor impeachment are required to find a party guilty — would not execute with Trumpers as legal; it would translate as partisan — and ignite. Conversely, while Trumpers do air the legalism of “due process,” screaming their guy is denied it, they do not apply the same to January 6th: That rampage on the U.S. Capitol was “due process”?
In this hot moment, we see the law we want. Our courts are now thoroughly politicized: Judges are regularly characterized by their political coloration and source of appointment: liberal or conservative. The Supreme Court itself, our topmost legal arbiter, is no longer seen as impartial, but partisan: politically conservative, leaning far-right. The whole court system itself is tainted.
More about our tinderbox moment: America is no pillar of rule of law anymore. Rather, we are a lawless-tending tinderbox, ready to blow. Latest proof: As reported by The Washington Post, in just one day two weeks ago, “bomb threats, forced evacuations, closures or stepped-up security measures” occurred in eighteen — repeat: eighteen (18!) — state capitols. That is way too much threat — and that was just one day. Public officials now get regularly “swatted”: police swarming their homes in response to hoaxers reporting a crime in progress there. Death threats to officials are so normalized, they don’t make the news anymore. Neither did those bomb threats above.
To be clear: It is the far-right, in the main, that is engineering this specter of violence. As the Post wrote, in its eye-opening front-page lead on the bomb threats: “While some on the right have been affected, many targets share a common attribute: They have done or said something that has earned Trump’s ire.” That this splenetic fear-mongerer is the likely GOP nominee says a lot (and nothing good) about American Democracy’s present health.
Thus by default: Best, I have come to believe, is the democratic option — Let the people decide.
Rather than the courts, let the voters decide on November 5, fair and square — “fair and square” being core to the American idea — who shall preside in the White House. Better than any “unelected judges” deciding for us, let We the People decide — in every state, on every ballot. As Professor Moyn writes, “[T]his country has to be allowed to save itself.”
To manufacture some hope here: If we are to restore American Democracy, November’s outcome must be decisive, Trump must be beaten big-time. That cannot happen if the election is seen as rigged from the get-go, if the courts disallow Trump: Trumpers would be even more motivated — to write in his name, contest close results, resort to violence. But if the election is generally seen as fair and square — determined by We the People and not the courts, with Trump on the ballot — and if Democrats, Independents, and recovering Republicans truly understand the peril of an insurrectionist back in power, then their turnout will rise, delivering a decisive No to Trump.
Still, this all feels like Pascal’s wager: Is there a God? Is there the democratic will remaining in America: to get out the vote in historic numbers, ensure the vote’s validity in each state (and deal with “kludge”), ensure the certification of each member of the Electoral College (no more fake electors, Trumpers!), ensure the safety of every election worker (Trumpers, quit the death threats!).
Of course, this wager prompts sinking spells: What avails Solomonic wisdom if the other side is in thrall to “the Big Lie” of a stolen election and an amoral, multiple-indicted standard-bearer? “Thrall” would explain Trump’s overwhelming win, by 30 points, in last week’s Iowa caucuses. And striking me as odd was a law professor characterizing the plaintiffs filing suits to disallow Trump in their states as “relentless”: Sir, Trump incited an insurrection! Damn right, plaintiffs should be “relentless,” insurrectionists should NOT be allowed on the ballot! Hmmm, my deep-down conviction breaks through, maybe Solomonic balance is not the way…?
It’s so much easier to argue from principle, it’s so much harder to argue from doubt. But I went with my doubt about Trump’s two impeachments, counseling moral censure instead of a political act — which, in the fullness of time, turns out a right decision. Now, my paramount objective, my devoutest wish, is that the antidemocratic Trump be defeated and that American Democracy, and Democrats, win.
Let the people decide! Come on, American People: Deliver.
