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Donald Trump and the Fourteenth Amendment
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I admit to being cheered by the decision of the Colorado Supreme Court that Donald Trump’s name should be excluded from the Republican presidential primary ballot in Colorado because Trump had been involved in an insurrection against the United States. Section 3 of the Fourteenth Amendment states that anyone who has taken an oath to support the Constitution and who “shall have been engaged in insurrection or rebellion against [the United States]” cannot hold any future public office. It is widely expected that whether the Colorado decision stands will ultimately be up to the Supreme Court of the United States. Unsurprisingly, the Trump camp announced an intention of appealing the decision to the Supreme Court. It is worth noting, however, that Trump often fails to do what he says he will do. It is unclear what his best move is in this case. If he does not file an appeal, the Colorado decision will stand, and Trump’s name will not appear on the GOP primary ballot. That would hardly be a tragedy for the Trump campaign. To begin with, a good showing in the Colorado primary is not especially important for the campaign. Moreover, the “slight” by the Colorado court provides yet another fundraising opportunity and a chance for Trump to advance his well-warned persecution narrative. If Trump is removed as a formal candidate in Colorado, his campaign will, I suspect, institute a write-in campaign, and the former president might still come out the primary winner. Appealing the Colorado decision to the Supreme Court, on the other hand, is a fraught move. On the plus side, the Colorado Supreme Court ruled that such an appeal will put its ruling on hold until the Supreme Court deals with the appeal. Because ballots must be printed beforehand, this would likely assure that Trump’s name appears on the Colorado primary ballot. It is widely believed that the high court will have to hear Trump’s appeal. Were the court to rule against Trump—some would argue that an originalist view of the matter weights against the Trump position—it could lead to the removal of Trump from GOP primaries in other states, perhaps in all states. The court could, however, sidestep the obvious and rule against Colorado on procedural grounds, accepting the arguments of one or more of the three dissenting Colorado justices. I suspect that this is what the could will do. The court is likely to be severely criticized for whatever it does, although this doesn’t seem to be something the justices care a fig about. Preventing Trump from running in a primary is not actually preventing him from holding office. Even if he could run in no primaries, the Republican Party could change its rules and nominate Trump as its presidential candidate anyway. It is much more important to keep Trump off the November ballot. That is the situation in which Section 3 of the Fourteenth Amendment needs to be invoked. If Donald Trump is nominated and then blocked from ballots late in 2024, the GOP could be thrown into chaos, much to the benefit to the Democrats and the health of the Republic. — LED, 12/21/2023 |
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