Opinion
Forget the Trump trials. He might already be ineligible for 2024.
None of the criminal prosecutions of Donald Trump, even if he is convicted, can constitutionally stop him from running in — and winning — next year’s election.
But there’s a serious argument that, separate from any criminal charges, Trump is constitutionally disqualified from returning to the White House because of his role in the Jan. 6, 2021, insurrection at the Capitol. And if the Constitution bars him from the presidency, then he’s not entitled to be on the ballot, and it becomes the job of state election officials to keep him off.
Two prominent conservative scholars have
added their voices — and, more important, their extensive analysis of the relevant historical record — in support of this argument. They conclude that Section 3 of the 14th Amendment, which was adopted after the Civil War to prohibit former federal officeholders who joined the Confederacy from holding office again, applies broadly to any “insurrection or rebellion” against the United States and not solely to the South’s secession from the Union.
These scholars explain in a forthcoming law review article that the Jan. 6 attack on the Capitol was an insurrection within the meaning of this clause and, crucially, that Trump engaged in this insurrection within the clause’s meaning, by both fomenting it and failing to exercise his presidential powers to stop it once it was underway. Refuting
the view that the president is not an “officer” to whom this provision applies, these scholars cogently note that John Tyler was a former president and John Breckinridge a former vice president who both joined the Confederacy, and surely the framers of the 14th Amendment intended its disqualification from future office to apply to the
likes of them.
The Supreme Court has not ruled on these issues. The 2024 campaign is underway with Trump far ahead in national polls of Republican voters and, in polls of all registered voters,
running even against President Biden in a potential general-election matchup. For the sake of the nation’s system of self-government, the Supreme Court must settle the question of whether Trump constitutionally can be president again — before the Republican convention is held next July.
Ideally, this case would be settled before the primaries begin in January. Realistically, however, that might not be possible. As long as the Supreme Court resolves this issue before the Republican delegates meet in Milwaukee for their presidential nomination convention, their party can avoid nominating a candidate who is constitutionally ineligible for the presidency. That way, voters in November 2024 would not be making a choice in which one of the two major-party contenders would be ineligible to serve if elected.
What would be disastrous for democracy would be for Trump to appear on the November 2024 ballot as the Republican nominee, then to win the election, and afterward be disqualified and denied a second term. Yet that could happen if, without a Supreme Court ruling before the GOP convention, Congress were to decide for itself that Trump was disqualified and so it must nullify the will of the voters when it convenes to count the electoral college votes in January 2025.
Lawsuits on behalf of voters
are already being planned, but for technical reasons concerning the jurisdictions of courts, it would be preferable if a state election official, such as a secretary of state, made a preliminary administrative ruling of Trump’s constitutional ineligibility and then sought judicial confirmation of this determination in state court. Consistent with due process, Trump — and voters who want him on the ballot — would be entitled to challenge this administrative decision in court. Whichever way the state court ruled could be appealed all the way to the Supreme Court, whose decision would be binding on all the states.
So far, so good. But there’s one important wrinkle. State law needs to permit election officials to make this kind of decision. If a state statute has not already authorized administrative officers to seek disqualification of presidential candidates, then — as the
Supreme Court signaled this year — it might be a usurpation of the state legislature’s prerogative to determine the “manner” of conducting presidential elections for these officials to assert this power on their own.
Consequently, the safest course is for a state legislature to clarify, by enacting a new statute as soon as possible, that its election officials have the power to remove insurrectionists from the presidential ballot. A new statute could create an expedited timetable to ensure that the case reaches the Supreme Court in time for a decision before the Republican convention in July.
A swing state controlled by Democrats, such as Michigan, could — and should — do this, but any single blue state would suffice. If any one state’s judiciary were to order Trump off the ballot, pursuant to this kind of statute, it would require the Supreme Court to resolve the matter for the entire nation.
Before it’s too late, a patriotic state legislature should take the step needed to avert the constitutional crisis, far greater than the Jan. 6 insurrection, that looms if voters elect a candidate whom the Constitution has made ineligible.
