Constitutional Considerations: Trump's Push for Ballot Access Sparks Existential Debates
Former President Trump's legal battles over ballot access ignite constitutional debates, highlighting the potential ramifications of his broad interpretation of executive authority
Former President Donald Trump is known for his numerous failed lawsuits related to business disputes and unfounded claims of voter fraud, often seen as absurd. However, his recent appeals in Colorado and Maine, after being excluded from the ballot, deviate from his typical pattern of using legal tactics to avoid accountability. While his motives may be self-serving and a result of his anti-democratic behavior, these appeals also raise an important constitutional issue that requires urgent resolution. Trump has taken his case to the US Supreme Court in Colorado and to a state court in Maine. Failure to address this issue at the highest level could lead to chaos in the 2024 election.
Trump is disputing decisions made by the Colorado Supreme Court and the Democratic secretary of state in Maine to disqualify him under the 14th Amendment's prohibition on "insurrectionists" following the attack on Congress by his supporters. In his petition to the Supreme Court, Trump argued that he did not participate in an insurrection and that his eligibility should be decided by Congress, not the courts. He also claimed that the insurrectionist ban did not apply to the presidency. The Colorado Republican Party, a party in the case, also warned of potential national consequences if the state Supreme Court ruling was upheld, citing ongoing disputes about candidate eligibility and vague insurrection claims. In a separate filing to the Maine court, Trump claimed that Secretary of State Shenna Bellows was biased and lacked the legal authority to hear a challenge to disqualify him from office.
The US Supreme Court's ruling on Trump's eligibility for the primary ballot in Colorado, Maine, and other states is crucial. The court is facing pressure to clarify the meaning of Section 3 of the 14th Amendment, which prohibits anyone who has engaged in insurrection or rebellion against the United States from holding office. It is essential for the court to intervene, as allowing states to interpret the amendment differently would create a problematic situation for the 2024 election and the future of US democracy.
The critical questions hinge on whether Trump's false claims about the 2020 election, his encouragement of supporters to rally in Washington, DC on January 6, 2021, and his exhortation for them to "fight like Hell" during the riot constitute participation in an insurrection. Even if they do, the question then arises: who has the authority to determine if someone is an insurrectionist? Are those accused entitled to due process to contest the charge? Despite facing 91 criminal charges to which he has pleaded not guilty, Trump has not been formally charged with insurrection. While the 14th Amendment was historically used to disqualify ex-Confederates from holding public office after the Civil War, its application in other contexts is largely untested, especially in relation to a former president.
In a notable decision last month, the Colorado Supreme Court determined that Trump did indeed incite an insurrection and continued to overtly and directly support the siege on the US Capitol while it was taking place. Similarly, in Maine, Bellows stated that no secretary of state had ever barred a presidential candidate from ballot access based on the 14th Amendment, but also noted that "no presidential candidate has ever engaged in insurrection before."
The US Supreme Court was specifically established to unravel this type of constitutional complexity. "We are dealing with the US Constitution, and the US Supreme Court has the ultimate authority on its interpretation, and they have not addressed this issue before," stated CNN legal analyst Jennifer Rodgers on Wednesday.
Yet another precedent established
Most presidential candidates facing the legal issues that Trump does would have withdrawn from the race a long time ago. However, the former president has continued to gain political support, especially among GOP voters in pre-primary polls, despite the increasing number of indictments, charges, and mug shots.
After the recent significant legal developments, it is important to consider the unique challenge that Trump is once again presenting to the framework of American democracy and the rule of law.
Additionally, some of the arguments he is making now seem hypocritical, as he is now advocating for protecting the individual choices of voters, which he previously attempted to undermine when trying to overturn President Joe Biden's victory in 2020.
"The ruling of the Colorado Supreme Court, which excluded Trump from the ballot, goes against the principles of our democratic system and denies the people the right to vote for their candidate of choice," read Trump's brief to the US Supreme Court. "This matter is of utmost importance and the Court should reverse the ruling, allowing voters to exercise their right to choose their elected officials."
The lawyers for the state GOP also argued against the Colorado Supreme Court's decision, claiming that it infringed on the people's rights to choose their elected officials. However, this concern contradicts Trump's actions, such as pressuring officials in Georgia to find votes to overturn Biden's victory and making false claims of voter fraud, despite the US Supreme Court rejecting these claims. This contradicts the will of voters who did not support him.
Trump's claim in his legal filing that he had urged his supporters to engage in peaceful protest as Congress convened to certify Biden's election victory strains credibility. Leading up to the January 6 riot, Trump repeatedly used combative language to encourage his supporters. Despite this, Trump's supporters and lawyers argue that he also called for the peaceful and patriotic march to the Capitol building, claiming that this was his main message despite his previous calls for fighting.
Former Trump White House lawyer Ty Cobb told CNN's Erin Burnett that the case hinges on whether the 14th Amendment's insurrectionist ban applies to the president himself. "I think the issue is not whether Trump participated or gave comfort to insurrectionists, but whether Article 3 of the 14th Amendment actually applies to the president. Unfortunately, I believe that Trump has a winning hand under the Constitution," said Cobb.
Cobb highlighted that the article does not mention the president by name and pointed out that the presidential oath to preserve, protect, and defend the Constitution is different from the oath taken by other officials to "support" it, as cited in Article 3. He emphasized that this supports the notion that the president is distinct from other public officers mentioned in the 14th Amendment. The issue of Trump's ballot access is crucial for the upcoming election, and resolving it could also be essential in preventing another disputed vote that would further divide the nation.
Trumps expansive claims of executive power â and what they might mean in the future
"It is crucial for the Supreme Court to address the issue directly before the general election, and certainly before the opening of the Electoral College votes on January 6, (2025)," stated Ben Ginsberg, a prominent conservative election lawyer, during an interview on CNN. "Because one of the few actions that members of Congress can take is to object to the qualifications of presidential candidates, and having that issue litigated for the first time on the congressional floor on January 6 is not ideal."
Trump is currently involved in multiple significant legal battles, including appeals on ballot disqualifications in Colorado and Maine. He is also attempting to overturn a lower court ruling regarding his claims of presidential immunity. Trump and his team are preparing for upcoming court hearings as he continues to assert his powers as president and challenge the principle that no American is above the law. These legal battles are part of Trump's efforts to delay accountability and maintain that presidents are ultimately unaccountable for their actions in office.
In his court filings, special counsel Jack Smith raised concerns that Trump's claim of broad presidential authority "could lead to Presidents committing crimes to stay in power." Smith has tried to appeal to the Supreme Court on this matter unsuccessfully, but the appeals court ruling next could determine whether the trial starts on March 4. Smith also warned of the potential misuse of power by a future president if Trump's legal claims are allowed, citing examples such as accepting bribes, planting evidence, ordering murders, or selling classified information to foreign countries. Smith argued that in each of these scenarios, a President could justify their actions as lawful or within their presidential powers.
In the current election, the once and possibly future president has vowed to use a second term to punish his enemies and has adopted an increasingly extreme and autocratic platform. This raises the question of whether Smith's hypothetical legal argument could be a preview of what's to come.
