Allowing Trump on the Ballot Is What Is Truly Anti-Democratic
Insisting he be treated as a normal candidate ignores the reality that he isn’t one
Last fall, here in The UnPopulist, I wrote about the electoral crisis looming over the issue of Donald Trump’s eligibility. Since then, the Colorado Supreme Court ruled that Trump cannot appear on the Republican primary ballot, and Maine’s secretary of state decided the same. He is, they both held, disqualified as an insurrectionist under Section 3 of the 14th Amendment, originally adopted after the Civil War to prevent ex-Confederates from returning to power.
Reactions to this news were predictably intense—and, in many cases, deeply misguided. Even Trump-critical commentators on both the right and the left chimed in to insist that disqualifying him in this way is legally unsound, practically disastrous, and straightforwardly undemocratic.
The impulse behind these claims is not entirely wrong. Kicking a leading candidate off the ballot is an extreme measure, properly reserved for extreme circumstances.
We are in extreme circumstances.
Trump is not a normal candidate playing by the rules. While our ideal should be a fair fight decided at the polls, following the usual norms, Trump has made that impossible. He is an example of why the Constitution treats his specific kind of wrongdoing, unique among all others, as meriting automatic and absolute expulsion from political contests. To defend democracy and the rule of law, we must follow this part of the Constitution no less than the rest of it.
Treating Norm-Breakers as Normal
Although the legal arguments offered against Section 3’s applicability to Trump have been generally weak (for example, he does not need to be criminally convicted of insurrection to be disqualified), some are at least minimally plausible (such as procedural arguments over how state ballot access laws work). Much more persuasive are the affirmative legal cases, including from an originalist perspective, for Section 3’s applicability to Trump. But setting aside the legal analysis, it’s worth addressing the normative political debate over Trump’s eligibility.
The argument against disqualification, so popular among pundits and politicians, fundamentally misunderstands both Trump and our present moment. This argument projects a desire for normalcy onto an abnormal situation, a kind of wishcasting denial mechanism. Trump’s own serial and serious desecration of norms and laws means that, if we were to treat him like any other politician, it would represent a further repudiation of those rules rather than a rehabilitation of them. It would require flattening the distinction between candidates who have attacked our electoral democracy and candidates who have abided by its rules. The importance of upholding the rule of law in our elections is paramount. Renowned political scientist Robert Dahl once named “fairly conducted elections in which coercion is comparatively uncommon” as an essential element of what he called “polyarchy.” In normal parlance, we call this a healthy liberal democracy. Additionally, free elections necessarily entail free speech, where “citizens have a right to express themselves without the danger of severe punishment on political matters.”
These same principles are used by organizations such as Freedom House to distinguish free countries from semi-free or unfree ones, largely tracking common-sense perceptions. Authoritarian and semi-authoritarian countries might go through the motions of elections, but we all understand why those elections are shams.
Can we say, in our present circumstances, the threat of violent coercion interfering in the electoral process is minimal to nonexistent? Are we free of significant efforts to conduct our elections unfairly, by fraud and lawbreaking? Is there little risk of the government punishing political speech no matter which way the election goes?
The reality is we do not have those things, at least not in full measure—and Trump’s candidacy is why we don’t. We are talking about threats against election workers, deliberate wrecking of elections administration, implicit and explicit calls for violence against public officials, vows to punish critics once in power, and an underlying threat of violent rejection of defeat—all made credible by this candidate’s demonstrated willingness to do these things and open intent to continue undeterred.
Electoral Calvinball
Though Section 3 might be triggered by past wrongdoing, it is premised on a presumption that past wrongdoing is predictive. This makes its purpose prospective rather than retrospective—to protect the constitutional order going forward, not merely to punish a past action. Trump shows why this is a reasonable presumption.
Concerns over a voter backlash are also overblown. Support for the Colorado ruling far outpolls opposition, 54 to 33 by one credible survey. Similar predictions of backlash at the polls against supposed anti-Trump overreach have repeatedly failed to materialize in response to impeachments, investigations, and indictments. Voters are not so averse to consequences for wrongdoing by political elites, especially not for the most extreme crime in American politics this century.
Objecting that these actions could backfire and ultimately help Trump win the election misses that a failure to hold Trump accountable could also result in Trump winning—and under worse conditions, since it would mean his anti-democratic methods get rewarded rather than thwarted. If the referees in a game allow one team to cheat, they may well “win” as a consequence, too. The purpose of Section 3 is not to constrain democracy but to protect it from those who don’t play by its most important rules. It excludes only candidates who, by their own behavior, have made it impossible to conduct a fair election with their participation.
Heads you lose, tails I win—by lawlessness, fraud, and violence if necessary—is not a stance compatible with peaceful political competition in an electoral democracy. You can’t have a free election when one side is allowed to use anti-democratic means with impunity. There can’t be a fair election when those following the law and respecting the rules are forced to compete with those who don’t.
Defeating an openly anti-democratic campaign is not a matter of simply getting more votes at the polls. Instead of a normal campaign, opponents must simultaneously fight to defend electoral democracy itself, to make sure their votes can be freely cast and counted, to win in spite of a rule-breaking opponent, unrestrained in his use of illegitimate means. Those opposing an anti-democratic campaign must essentially compete with one hand tied behind their back—and that’s if they refrain from resorting to similarly extra-legal methods, which will not happen in the long term if these things become normalized and accepted.
Consequences Matter
Section 3’s framers knew what they were doing. There can be no level playing field against opponents who reject the fundamental premise of a free election, conducted fairly, with a binding lawful result. Forbidding such candidacies isn’t anti-democratic—it’s essential to having meaningfully democratic elections at all, on fair and equal terms for all sides.
We can have free and fair elections, or we can have an election with Trump treated as a normal valid candidate, but we cannot have both. Treating him as a legitimate participant in the election is not a matter of respecting the rights of those who want to vote for him. It’s about whether we reward and enable an ongoing campaign to violate the rights of everyone else, the millions of Americans he tried to disenfranchise and, crucially, is still trying to disenfranchise.
It is true there are other mechanisms for accountability: impeachment (which also brings with it potential disqualification), criminal prosecution, civil liability, and plain old electoral defeat. But the reality is those mechanisms have either failed (impeachment), are ongoing and uncertain (prosecution and lawsuits), or have not yet occurred (another presidential election).
For those who want voters to be the ones who recognize the severity of Trump’s attack on democracy, it should not be overlooked that the application of Section 3 is the first time any government institution has squarely found him culpable and directly imposed a penalty for it. It might be the only time that happens before the 2024 election, possibly ever. The alternative is not simply leaving it up to the voters, but implicitly minimizing the severity of significant attacks on our democracy. It can’t really be that serious, the accusations must be overblown, if years later Trump still hasn’t faced any of the applicable consequences.
Democracy Defending Itself
Legal interpretation aside, disqualifying Trump is not anti-democratic. It is democracy defending itself. Insisting he must simply be defeated at the polls ignores what happens next, and everything that happens during the campaign prior, as if the normal terms of the pre-election campaign and post-election counting can be taken for granted. They can’t be.
It’s not just the rights of Trump’s supporters who wish to vote for him that are at stake, which is the most common objection to following Section 3. The right of everyone else to have a peaceful, lawful, and free electoral process is no less important. As Trump’s current federal indictment points out, this is a conspiracy against your rights, all the millions of people who cast a ballot for anybody other than Trump. Ballot box stuffing in the Electoral College is no less an attempt to steal an election than doing it at the local polling place. Fraudulent counting of votes is no better than violently intimidating voters into not casting a ballot. We can’t maintain democratic elections if one party is allowed to have it both ways, participating in elections on the one hand while also vandalizing them with the other.
The 2024 Election Is Already Flawed
We face, once again, having to rely on all our institutions holding firm. In the 2020 election, that meant local election administrators, state and federal courts, governors, secretaries of state, state legislatures, civilian federal departments, the military, Congress, and the vice president. All of these were tested by the attempted coup. Failure in any one of them could have poured fuel on the fire, making an already bad situation dramatically worse. And many of those bulwarks have been weakened under the sustained assault they’ve continued to face in the years since.
Section 3 is no magic bullet, no “one neat trick” to save America. Even if the Supreme Court allows it, few states will actually remove Trump from the ballot, and all would likely be states he would never win anyway. States are not generally prohibited from placing unqualified candidates on the ballot, if they want to. Many states have a history of doing so, especially for president, as a policy choice. The Court is therefore very unlikely to forbid placing Trump on ballots even if it finds he is in fact ineligible to be president. How the American people vote in 2024 is still the most important part, certainly not something to be set aside.
If a candidate has demonstrated his ineligibility through an egregious violation of the Constitution, then formally recognizing that fact is important even if more obscure facets of election law mean some states will still put him on ballots. That would send an unambiguous message to the nation that this is serious wrongdoing with serious penalties. A Supreme Court ruling could also affect how Congress reacts to this same argument during the electoral count on Jan. 6, 2025. And it makes it likelier that the courts will push back if Republicans hold one or both chambers and ignore the ruling in order to let Trump assume office.
This November, it is very likely that in many parts of the country voters will go to the polls and see Trump listed like other normal candidates, each appearing scrupulously equally in the ballot design. But voters should know that the appearance of equal footing is hollow and a Supreme Court ruling in favor of Colorado's decision would underscore that. That is the next best thing to striking Trump from the ballot altogether.
© The UnPopulist 2024
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Your pragmatic analysis is spot on. Whether Trump should be allowed on state ballots is an existential political question, and the answer is no. Jack Rakove, Stanford University professor of history and American studies, today emphasized that a proper understanding of the history of the Constitution requires the U.S. Supreme Court Trump to rule Trump ineligible for the 2024 ballot. Former Court of Appeals Judge Michael Luttig and Harvard Law School Professor Laurence Tribe concur. The Constitution effectively inoculates the Republic against the threat of one who has attempted to undermine it. It is therefore the sacred duty of the U.S. Supreme Court to act accordingly, without bias, fear or contortion, via a unanimous opinion, one which meets the demands of this historic moment.
I'm persuaded. I hadn't been taking into account the violent threats already impacting this election, both the threats against election workers (which have likely already "baked in" long lines and other obstacles to a fair election) and the threats against Republican officials who endorse other candidates (which is preventing a fair Republican primary).
It's absurd to say: "Well, we should let the voters decide whether they want to elect someone who uses violence and threats of violence as part of their political strategy." No, political violence prevents democracy from functioning. Political violence is the difference between true democracy and a dictatorship with a nominal democracy. Americans who recognize this must use all legitimate means available to head off this threat.
And as I put it four years ago at another Constitutional decision point, "To the extent fears of violence in 2016 are heightened by the fervor of Mr. Trump’s supporters, that cannot be allowed to sway [this decision]. There is a word for yielding to threats of violence in the futile hope of indefinitely putting off the inevitable: appeasement." It's way past time to tear this band-aid off.
Yes, there is a risk of provoking outrage and even violence. But there is a similar risk of violence in 12 months if Trump is allowed on the ballot and defeated again in November---or, similarly, if he wins in 2024 but (he or his appointed successor) is defeated in 2028. The risk of violence in each case stems from a candidate willing to persistently claim fraud without any basis in fact *and* then encourage a violent response from his supporters (a candidate, that is, with a proven willingness to rebel against---or give "aid or comfort to the enemies of"---the Constitution of the United States).
We've been waiting eight years for the risk of Trump-incited violence to subside on its own, but the threat has instead only grown. The lesson of January 6th is that our democracy will be overrun if we don't take this threat seriously and face it head-on. It's time to put the necessary law enforcement personnel on alert and disqualify this would-be usurper.