The Colorado Supreme Court’s December 19 decision touched off a storm of bad reporting: errors about the law, history, and basic facts surrounding the conclusion that Donald Trump is disqualified from holding office. Let’s correct five key errors. [And see below for an an sixth error and an update based on Maine’s disqualification.]
Error 1: Several other courts have ruled that Trump is not disqualified.
Outside of Colorado, no court has decided whether Section 3 of the Fourteenth Amendment disqualifies Trump. Federal and state courts elsewhere have dismissed disqualification cases. But they ruled on what you might call procedural grounds, particularly arguments that the plaintiffs in those cases lack “standing.” (That includes today’s decision from the Michigan Supreme Court.) That means those particular plaintiffs lack the sort of injury necessary to maintain a lawsuit, at least as of now.
In other words, if the U.S. Supreme Court affirms the Colorado decision on appeal, it will be agreeing with the only court system that has an outstanding decision on Trump and the Fourteenth Amendment.
For updates on the all the disqualification cases, see The Trump Disqualification Tracker from The Lawfare Institute.
Error 2: Disqualification isn’t likely or right because it would take the decision away from the people.
If we wanted government purely by vote of the people, we wouldn’t need a constitution. Written constitutions take power out of the majority’s hands, and ours is no exception. (In fact, it’s the model.) The U.S. Constitution outlines a government structure the majority can’t change (except through amendment). And it protects our rights from majority decisions. For example, no matter how much the majority might want a law that restricts freedom of religion, the First Amendment forbids it.
The Constitution also restricts the people’s power to choose office holders. The majority might prefer a presidential candidate younger than thirty-five or one who wasn’t born a citizen (e.g., Arnold Schwarzenegger). But he or she couldn’t become President because Article II of the Constitution forbids it.1U.S. Const. art. II, § 1. (The Constitution’s Electoral College system also restricts majority power to choose office holders. That system gave Trump the Presidency in 2016 despite the fact that he lost the national majority/popular vote.)
Section 3 of the Fourteenth Amendment serves the same purpose. Congress and the states enacted Section 3 because they knew Southern voters would elect ex-Confederates, and they wanted to block those majority votes.
Note also that removing Trump from the ballot does not actually take away anyone’s vote, assuming it’s done before votes are cast. It just removes one candidate, leaving populists and other Republicans plenty of other options.
For more on the mechanics of Section 3, see my prior article on Fourteenth Amendment disqualification.
Error 3: Disqualifying Trump would violate due process.
The Constitution requires due process of law to deprive anyone “of life, liberty, or property.”2U.S. Const. amd. V. It doesn’t require conviction or any other form of due process to deprive anyone of political office.
Further, the Fourteenth Amendment is part of the Constitution (of course). So it’s not overruled by other provisions, like the due process requirement. And as explained in my earlier post, the Amendment originally disqualified former confederates without conviction. That was the point.
It’s also not clear what process would be due if the courts ultimately required some sort of hearing. Trump may have already gotten it in Colorado.
Error 4: Disqualification is a terrible strategy for the Democrats since Trump can use it to build support.
The Democratic Party is not behind the effort to disqualify Trump. The people claiming disqualification are conservative and liberal citizens, acting on their own. Eventually, state election officials will probably block Trump too – not for political reasons (we hope) but because they think the law requires it.
As for President Biden, he’d probably prefer that Trump remain the Republicans’ nominee. Trump is the only Republican candidate carrying more political baggage than Biden. So a Trump nomination gives Biden his best odds of reelection.
Finally, disqualification is not a political strategy. It’s the law. If Trump is disqualified under the Constitution, it is everyone’s duty to see that he does not hold office, regardless of political calculation.
Error 5: There is no chance the conservative Supreme Court will rule against Trump.
The Court’s political leanings shouldn’t matter. But if they do, the majority’s conservatism may cut against Trump more than it favors him. Trump is not conservative: he’s a populist. And while the distinction is lost on many, it almost certainly isn’t lost on conservative justices like Roberts and Kavanaugh. Trump is not one of theirs.
Also, conservative justices regularly apply “original intent,” interpreting the Constitution as close as possible to the Framers’ intent. (Many doubt that modern decisions based on original intent have much to do with the Framers’ views, but that’s a separate issue.) Original intent may work against Trump. The deeper legal issues lie beyond the scope of this article, but there are good arguments that the authors of the Fourteenth Amendment meant to keep people like Trump out of office. They could have limited disqualification to former Confederates or given it an expiration date, but they didn’t. (Again, see my earlier post, as well as the sources it cites.)
For many who oppose Trump, disqualification sounds too good to be true (like assuming Putin will be overthrown, giving Ukraine an easy out). And for Trump supporters, its sounds too unfair. Those perspectives probably explain why the press insists on calling disqualification a long shot. Neither side’s feelings, however, determine the law. No one knows what the Supreme Court will do, but I think disqualification has better odds than most Americans realize.
UPDATE: On December 28, Maine’s secretary of state also held Trump disqualified. See my next post: “Main disqualification: why the secretary of state, not the courts?”
© 2023 by David W. Tollen. All rights reserved.
- Oil portrait of the three colonels of the 26th North Carolina Regiment: Henry King Burgwyn, John Randolph Lane, and Zebulon Baird Vance, by William George Randall, 1897
- Foundation of the American Government, by John Henry Hintermeister, 1925.
- 1U.S. Const. art. II, § 1.
- 2U.S. Const. amd. V.