Urge to disqualify Trump pits democracy against the rule of law
The Colorado Supreme Court’s ruling that Donald J. Trump is constitutionally ineligible to run for president once again pits one fundamental value against another: giving voters in a democracy the right to choose their leaders versus choosing them ensure that no one is above the law.
Trump’s status as the Republican front-runner for the presidential nomination, despite his role in the events that culminated in the attack on the Capitol on January 6, 2021, has created serious tensions between these two principles. If the court’s legal reasoning is correct, obeying the rule of law produces an antidemocratic result.
That constitutional and political dilemma will likely end up before the U.S. Supreme Court. And while Trump’s name would remain on the ballot while the justices considered the case, their decision would have consequences far beyond his chance of winning Colorado’s ten Electoral College votes.
First, similar legal challenges to Mr. Trump’s eligibility are pending in at least sixteen additional states. Moreover, the precedent the case will set could open or close the door to the risk that partisans will routinely turn to state courts to try to keep major federal candidates off the ballot.
Supreme Court justices serve life terms heap that their work will be independent of political influence, and that it would be unlawful, under the principle of the rule of law, for them to alter their interpretation of the Constitution for political consequences. Under the rule of law, the Constitution and federal statutes apply equally to everyone, and no one’s power, wealth, political influence, or other special status places him or her above the law.
But according to the principle of democracy, the legitimacy of the government comes from the fact that the voters decide who to put in charge. The prospect that unelected judges will deny voters the chance to make their own decision about Trump’s political future has even given pause to some of his critics, who fervently hope that Americans will reject him at the ballot box.
Stephen I. Vladeck, a law professor at the University of Texas at Austin, said that even if you think Mr. Trump’s actions have made him unfit for office under the 14th Amendment, there are other — and less alarmingly new — systems that could have tackled this problem before it ended up in court. These would have freed the Republican Party to have a completely different primary, he said.
“The problem is we’re just not prepared for this – we’ve blown through the safety nets,” Mr Vladeck said. “We were spared this problem in the few previous episodes where it could have arisen due to various limitations. And so we’re in this position now because those backstops failed.”
Had nine more Republican senators voted to convict Mr. Trump during his Jan. 6 impeachment trial, he would have been ineligible for future office anyway, said Mr. Vladeck, who wrote a column about the complications of the ruling the court in Colorado entitled “The law and high politics of disqualifying President Trump.” And if more Republican voters were turned off by Trump’s attempt to secure an unelected second term, his political career would effectively be over.
The legal dispute centers on a clause of the 14th Amendment, which was added to the Constitution after the Civil War. The third part says that people who have betrayed their oath of government by participating in an uprising are ineligible to hold office. Citing Mr. Trump’s actions surrounding the Jan. 6 riot, the Colorado Supreme Court ruled Tuesday that he was an oath-breaking insurrectionist whose name could not legally appear on the ballot.
“If the language is clear and unambiguous, we uphold it as written,” a four-judge majority wrote.
But even if a majority of U.S. Supreme Court justices privately agree that the disqualification clause, by its plain text, clearly bars Mr. Trump from returning to government power, it won’t be surprising if they hesitate to the prospect of issuing a ruling affirming the Colorado court’s decision.
If the justices want to overturn the Colorado ruling, they will have numerous potential fallback options. Mr. Trump’s lawyers will have technical arguments, such as whether the clause in question has legal force on its own or whether Congress must first pass a statute before it takes effect. His lawyers will also have substantive arguments, such as denying that the January 6 mob violence rose to the level of an “insurrection” in the constitutional sense.
The dilemma invites comparisons to the Supreme Court’s intervention in the 2000 election, which overruled the Florida Supreme Court and ensured that George W. Bush would maintain his narrow lead over Al Gore in that state for votes in the Electoral College win and become the next president.
An agreement is the risk of the appearance of bias. In Bush v. Gore, the five most conservative justices ensured that the Republican candidate would prevail. Today, the U.S. Supreme Court is controlled by a supermajority of six Republican appointees, so a decision to overturn the Colorado ruling and help Trump could also have partisan overtones.
One difference is the implications for democracy. The Florida Supreme Court did not decide the fate of the candidates itself in 2000, but sought to allow the completion of a recount that would have clarified the will of the voters. If the Supreme Court now overturns the Colorado ruling, it will lean toward letting the voters decide Mr. Trump; upholding the state court ruling would be the opposite.
There has always been inherent tension in the American system of government because the Constitution places certain limits on democracy. First, most decisions are made by elected representatives, and not directly through plebiscites and referenda.
The structures of the Senate and the Electoral College system undermine the democratic principle of equal say by giving disproportionate power to voters in sparsely populated states—and sometimes to the loser of the national popular vote, as Mr. Bush did in 2000 and Mr. Trump in 2016, only to become president.
Not everyone living in the United States can vote for government leaders. Permanent residents of non-citizens, people under the age of 18, and convicted felons are not allowed to participate in elections in some states – all of which violates the principle that the legitimacy of government comes from the agreement of the governed as to who will be in charge to have.
Other requirements limit who is eligible for office. The 22nd Amendment prohibits anyone from being elected president for a third time, even if voters want to keep that person in place. It was added after President Franklin D. Roosevelt violated the constitutional norm of retiring after two terms that President George Washington had established.
The Constitution sets age limits: one must be at least 25 years old to be a member of the House of Representatives, 30 years old to be a senator and 35 years old to be president, even if voters would prefer someone who happens to be younger .
And the Constitution stipulates that in order to become president, someone must be a natural-born citizen. The antidemocratic nature of that rule attracted some attention when actor Arnold Schwarzenegger, a naturalized citizen born in Austria, was elected governor of California. He could never run for president, no matter how popular he was with voters.
The issue of citizenship at birth has also been the subject of political attention. When Senator John McCain ran for Republican president in 2008, there were questions on the margins about his eligibility because he was born in the Panama Canal Zone, albeit to American parents.
Trump’s rise to national political prominence was fueled by his lie that President Barack Obama, who was born in Hawaii, could possibly have been born in Kenya. And during the 2016 Republican primaries, Trump attacked a rival, Sen. Ted Cruz of Texas, over his birth in Canada, similarly trying to sow doubts about his fitness to run for president.
But despite Trump’s own history of questioning the suitability of his political opponents for the presidency, his legal disqualification would risk undermining democratic legitimacy in a society where extreme polarization and partisanship are already raw.
The moment brings to mind an ambiguous legal phrase that is often invoked as a rallying cry for courageously following the law, but which, as Mr. Vladeck noted, also carries a stark warning: “Even if the sky falls, let justice be done .”