The U.S. Supreme Court expressed proper doubt toward Colorado’s attempt to exclude Donald Trump from its presidential ballot under the 14th Amendment. Trump is indeed an anti-democratic demagogue who sought to overturn the 2020 election, before and on Jan. 6. But the judgment of whether he engaged in a second Civil War is not for 50 state courts to decide. It could be unanimous to overrule Colorado.
Interpreting Section 3 of the 14th Amendment is no simple task. It 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.”
Question one is how insurrection or rebellion are defined. Question two is who does the defining, and the enforcement. Question three is whether this language, which doesn’t even include reference to the presidency itself, applies to that office or only to those beneath it. Question four is can a state do this or must Congress.
Lawyers on both sides disagreed with how exclusion from the ballot would proceed even if the candidate in question were an avowed insurrectionist running for an office clearly listed in the amendment. Colorado’s lawyer called it a “very easy case”; the self-declared enemy of America could be scratched from the ballot by state courts, period, end of story.
Trump’s lawyer disagreed — and wasn’t crazy for doing so. “Even if the candidate is an admitted insurrectionist,” said Jonathan Mitchell, “[the Constitution] still allows the candidate to run for office and even win election to office and then see whether Congress lifts that disability after the election.” It’s true that the language applies only to holding office, not to running, and it’s also true that it explicitly gives Congress the power to “remove such disability.”
The fact that in this case the person in question is a former president complicates matters further. As does the fact that, unlike every other president before him, he had never before sworn the oath for any other office. As does the fact that what Trump did, while definitely wrong and quite possibly criminal, may not legally be an insurrection.
Special Counsel Jack Smith’s case against Trump for meddling in the 2020 election is powerful, and it is a tragedy that the case may not be settled before voters go to the polls in November. The prospect of a President-elect Trump — or a second-term President Trump — being found guilty of undermining the American democratic system is enough to make one’s head spin. (So is the prospect of Republican voters making him the party’s standard-bearer despite all he’s done and all he pledges to do.)
But state by state removal from the ballot by state courts for having engaged in insurrection? That dog will not hunt, nor should it.