There Is Nothing Anti-Democratic About Removing Trump From the Ballot

Last week, the Supreme Court agreed to hear a momentous case: whether former President Donald Trump can be removed from state ballots under the disqualification clause of the 14^th Amendment for having “engaged in insurrection.” The question is unprecedented, and the high court (and the public) may or may not agree with the Colorado Supreme Court’s disqualification of the former president. But there should be no disagreement about this: Pressing the question is not “antithetical” to democracy, as former Vice President Mike Pence said on Sunday. Rather, it is in the best tradition of American democracy to ask if the Constitution applies here—and to enforce it if it does.

The Colorado courts found that Trump’s role in connection with the Jan. 6, 2021, attack on the U.S. Capitol constituted engaging in insurrection under Section 3 of the 14^th Amendment. Indeed, every judicial fact finder to reach the question has agreed, including the Maine secretary of state, and a majority of the House and Senate concluded Trump incited the insurrection. They are in our view correct: As we have explained in our scholarship, Jan. 6 was an insurrection, Trump was a central part of it, and so the law and the facts clearly favor disqualification.

Those conclusions are hardly partisan; in fact, leading conservative legal scholars and lawyers applying traditionally conservative tools of interpretation have provided the intellectual foundations for disqualification. They have persuasively demonstrated that Section 3 applies to the presidency and is self-executing and thus does not require congressional action for enforcement.

As Justice Neil Gorsuch wrote when he was a judge on the U.S. Court of Appeals for the 10^th Circuit and upheld Colorado’s decision to prohibit a non-natural-born citizen from the presidential ballot, states have a “legitimate interest in protecting the integrity and practical functioning of the political process.” Originalism, textualism, states’ rights—these are the bedrock principles of the conservative legal movement, and these approaches all suggest that Section 3 of the 14^th Amendment applies to Trump. Justice Gorsuch and his colleagues on the Supreme Court will now have to resolve these pointed legal issues.

The justices have undoubtedly begun wrestling with the broader question of whether it offends our democracy to disqualify Trump. America certainly has. Critics of the disqualification clause have argued that applying Section 3 is inherently anti-democratic. For example, a respected GOP state official who has been lauded for his refusal to help Trump overturn that state’s presidential election results penned an op-ed criticizing the disqualification cases. “Voters should decide elections,” wrote Georgia Secretary of State Brad Raffensperger. “Invoking the 14th Amendment is merely the newest way of attempting to short-circuit the ballot box.”

This argument mistakenly conflates states’ efforts to enforce the Constitution with the election interference and voter disenfranchisement Trump and his acolytes have perpetuated. In a democracy, the will of the people is expressed by the laws enacted by democratic means—as Section 3 was. Following the Civil War, supermajorities in both chambers of Congress passed the 14^th Amendment, and the states ratified it. They chose to weave this safeguard into America’s foundational fabric rather than rely on voters in individual elections to decide whether ex-Confederate officers should be allowed to serve. The 14^th Amendment permanently enshrines in the Constitution the privileges and protections of democracy.

Moreover, Section 3 of that amendment is merely one of many qualifications the Constitution imposes on who can be president. We do not feel those are anti-democratic, and the same is true here. Republicans aren’t caterwauling that it’s an anti-democratic travesty that they can’t vote for Arnold Schwarzenegger for president because he is foreign-born, and Democrats aren’t complaining that Rep. Maxwell Frost is ineligible to be a candidate in the 2024 presidential election because he is under age 35. Enforcing the disqualification clause is no different.

Indeed, these other restrictions are far less essential to our democratic republic than the one contained in Section 3 of the 14^th Amendment. Of course the Constitution prevents anyone from serving as president who has previously attempted to overthrow the government they would be leading. An insurrectionist in the Oval Office would be far more dangerous than a President Schwarzenegger or a 28-year-old President Frost—and would pose a uniquely existential threat to the country.

In addition to disqualifying anyone who “engaged” in “insurrection” from serving as president, one of the most important limitations on the presidency is that an individual cannot serve more than two terms. By the logic of those concerned that Section 3 of the 14^th Amendment is anti-democratic, so too is the 22^nd Amendment, which establishes that term limit. Yet no one is decrying as anti-democratic the fact that we cannot vote for George W. Bush or Barack Obama for a third term.

Conversely, by enforcing the 14^th Amendment we are reinforcing the 22^nd—and the rest of the Constitution. Donald Trump has explicitly begun musing about running for a third term in 2028 if he wins this year—claiming that since the 2020 election was “stolen” from him, he’s entitled to terminate all rules in the Constitution and take an extra term as recompense. While the notion may seem ridiculous, recall that many scoffed at concerns that Trump would attempt to hold on to power even if he lost the 2020 election. A democracy works only when its rules are enforced consistently, irrespective of whether doing so is controversial or easy. Flouting the Constitution when it clearly applies is anti-democratic.

The idea that voters should decide elections should not mean that judges and other state officials are powerless to uphold candidate eligibility laws. Those officials play a critical role in the functioning of our democracy. They have excluded candidates who violate basic eligibility qualifications in all 50 states and the District of Columbia. The judges and officials making the decisions in Colorado and Maine are no different, and their decisions—regardless of how they rule—are pro-democracy so long as they are faithful to the rule of law.

At least one person who engaged in the Jan. 6 insurrection has already been disqualified under Section 3. Although a major-party candidate for president has never been disqualified, there is nothing as democratic as applying the law equally to both an ex-president and every other American.

Additionally, claims that using “a constitutional interpretation to remove anybody from the ballot is going to be a dangerous precedent” are misguided. Upholding the Colorado decision would not create a wide-ranging precedent that could be used to disqualify any candidate. The decision was narrowly tailored to Colorado’s election code and the evidence supporting the trial court’s findings that Trump engaged in insurrection. A candidate would have to have “engaged” in “insurrection” comparable to the violent effort to overturn the results of the 2020 election led by Donald Trump. No presidential candidate’s conduct since the passage of the 14^th Amendment has ever come close to that definition of “insurrection,” and hopefully the country will not face such a threat again.

Even if an avalanche of red-state officials try to, say, remove Joe Biden from the ballot in retaliation—as one has already threatened to do in Missouri—the federal judiciary is more than equipped to recognize and knock down such efforts. One of the primary purposes of Section 3 of the 14^th Amendment was to prevent the recurrence of insurrections. Thus, by enforcing the provision, the court would help fortify the country against anti-democratic forces that work to subvert the will of the people. Also, it would paralyze our democracy if government officials hesitated to properly apply the law for fear that other officials may retaliate by misapplying the law for political reasons.

Concerns that “Trump should not be disqualified by an ambiguous clause” are also spurious. Arguing that it is not “democratically appropriate” to have the U.S. Supreme Court interpret the Constitution “in the absence of any public debate” is illogical. Judges do not poll the public before interpreting the law, and federal courts have been interpreting Constitutional ambiguities since the Supreme Court established the principle of judicial review in 1803.  After all, if a law is not ambiguous, there’s little need for the Supreme Court to interpret it. Throughout history, the Supreme Court has hardly shied away from forcefully deciding Constitutional ambiguities in vitally important contexts.

It is impossible to predict what the court will do here. It may or may not agree with us about the meaning of the 14^th Amendment or its application to Trump. Whether it can achieve unanimity around a justifiable holding or whether it veers into a divided Dobbs-like MAGA manipulation will be telling. But evaluating Trump’s candidacy in good faith under the disqualification clause is not antithetical to our democracy. To the contrary, government striving to uphold the laws adopted by the people is our democracy. It is failing to honestly interpret and apply the disqualification clause that would be undemocratic for the court—and for us all.