Saving Democracy from the Voters

So former President Donald Trump has been disqualified from the Presidential primary ballot in Colorado, in a 4-3 Colorado Supreme Court decision. So Republicans in Colorado will not be able to vote for him to be their nominee. They neglected to directly address whether he could appear on the general election ballot in November, though obviously the ruling implies that he should not.

Republicans are now lambasting the court for making an “undemocratic”, “politically motivated”, etc., decision to persecute the poor, innocent Trumpy.

Questions:

1. Was this decision legally correct?

2. Was it good for the country?

3. What’s next?

I. Is the Decision Legally Correct?

Probably yes.

A. The Relevant Law

From the 14th Amendment, Section 3:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” [emphasis added]

The claim is that Trump engaged in insurrection on Jan. 6, 2020 and thus is disqualified. Election law requires that only qualified candidates should appear on the ballot, so he can’t appear.

Start with the big question:

B. Did Trump Engage in Insurrection?

1. What is insurrection?

From the Colorado Supreme Court opinion:

“any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”

This seems reasonable. It’s not necessary that the rioters have attempted to completely dismantle the government. This is how Webster’s defined “insurrection” in 1860, around the time of the 14th Amendment:

A rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state. It is equivalent to SEDITION, except that sedition expresses a less extensive rising of citizens. It differs from REBELLION, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one, or to place the country under another jurisdiction.

2. What was the mob at the Capitol up to?

The mob was at minimum trying to stop Congress from certifying the election results, and especially to stop Mike Pence from finishing counting the votes per his legal duties, which would have stopped the peaceful transfer of power. They were attempting to do this through, at minimum, a serious and credible threat of force. For evidence of this, see the January 6 Committee Report.

But I don’t think the mob’s intentions are what really matters here. What really matters are Donald Trump’s intentions. Even if the mob thought that they were “stopping the steal” (because Trump told them that), Trump himself certainly knew what he was doing.

3. What was Trump up to?

There is no doubt about what Trump was up to: He was trying to stop the certification of the election results, so that he could overturn the election and cling to power. His remarks on Jan. 6 were just the latest part of an ongoing plan, which included pressuring election officials to falsify vote results, sending fake election certificates to Mike Pence, and pressuring Mike Pence to count the fake votes. See my earlier post on “Who Can Best Destroy America” and the January 6 Committee Report. The evidence is also summarized in the Colorado decision, pp. 106-116.

His remarks on January 6 were intended to intimidate Congress and Mike Pence into going along with his plan. Attempting to overturn an election using threats of violence sounds like “engaging in insurrection” to me. He need not have personally taken up arms; I think it’s enough that he intentionally incited others to produce a credible threat of violence, in an attempt to overthrow the elected President.

Example: Assume that Jefferson Davis didn’t actually physically take up arms during the Civil War; he merely told other people what to do. Suppose further that when he gave orders, Davis talked like a mafia boss and merely implied what he wanted people to do. It would be ridiculous to suppose that therefore Jefferson Davis could have run for President after losing the Civil War.

C. Frivolous Objections

The following strike me as frivolous, but they are among the arguments that Trump threw at the wall to see if they would stick:

1. Is the President an officer?

Section 3 only disqualifies Trump from the Presidency if the Presidency is an “office” “under the United States” and he was an “officer of the United States”. The lower court thought that “officers” are only the people under the President, not the President himself. So Section 3 doesn’t apply to him. The court was moved by the fact that in a previous draft of Section 3, the Presidency was specifically mentioned; then the drafters deleted that, thus suggesting that they meant to exempt the Presidency.

Reply:

a. Dictionaries from the time the 14th Amendment was written define an “office” as “a publick charge or employment”, or a “particular duty, charge or trust conferred by public authority, and for a public purpose”. This applies to the Presidency.

b. The Constitution refers to the Presidency as an “office” 25 times.

c. Why was the Presidency deleted from an early draft? Most likely for economy of wording. The previous draft separately mentioned “the office of President”, Vice President, Senator, Representative in Congress, and any office under the President. Most likely, they just decided to combine President, Vice President, and offices under the President into the single category of “any office … under the United States”.

d. There was actual discussion from the time when the 14th Amendment was proposed. One senator objected that Section 3 didn’t specifically exclude insurrectionists from the Presidency. Someone responded that the phrase “any office, civil or military” included that. The objector then conceded that this was correct. There was also lots of discussion in which people said that Section 3 was needed to stop someone like Jefferson Davis (the president of the Confederacy) from becoming U.S. President.

e. The Trump team asks us to believe that the ratifiers of the 14th Amendment meant to exclude Confederate rebels from being legislators or bureaucrats but to allow them to be President. That’s just completely ridiculous.

2. Is the law self-executing?

Complaint: The court can’t enforce Section 3 on its own. Congress would have to pass some legislation to enforce it.

Reply: Courts regularly enforce the Constitution, including the 14th Amendment, without waiting for Congress to pass legislation. The complaint implies that Congress could nullify the 14th Amendment by just not passing any laws. This would imply, e.g., that we could have continued to have slaves, despite the 14th Amendment’s prohibition on slavery, then elected Jefferson Davis as President.

3. What about Trump’s due process rights?

Complaint: Trump has not been convicted of insurrection in a criminal trial, and he hasn’t been given a chance to plead his case before a jury. He was only given this expedited court procedure.

Reply: Due process for a dispute about who can be on the ballot is different from the due process required for a criminal conviction. For obvious reasons, the process for ballot disputes has to be expedited. Trump has received the normal due process for this type of case. The Colorado court is not sending him to prison, so they don’t have to conduct a full criminal trial.

4. What about Trump’s free speech rights?

Americans, including the President, have a general right of free speech. Trump was just exercising that right in speaking on January 6.

Reply: Standard free speech doctrine recognizes incitement to violence as an exception to the general right of free speech. The incitement need not be a fully explicit demand for violence; it may be an implicit encouragement.

More generally, freedom of speech does not mean that you have the right to commit crimes as long as you do so purely by talking. If you say to a hitman, “Please assassinate Joe, and I’ll give you $50,000”, you’re committing a crime. If there was a law that said people who order hits on Joe can’t be President, you could not claim to be nevertheless eligible for the Presidency on the grounds that you were merely “exercising free speech”.

D. Dissents

Why did 3 judges dissent? Basically, the minority thought that the extremely compressed court process for litigating who can be on the ballot was not meant for, and not suitable for, adjudicating such complex questions as whether someone engaged in insurrection. It is only meant for, and only suitable for, assessing straightforward, factual qualifications, such as whether a person is at least 35 years old, or whether a candidate meets a residency requirement for a school board election.

They thought that the only proper way thus far provided to disqualify someone for being an insurrectionist is for that person to first be convicted for insurrection in an independent trial. Then someone could seek an injunction in this expedited process to bar the insurrectionist from the ballot.

This isn’t a crazy argument. Nevertheless, I think the majority opinion is probably correct. It’s true that the process was not well suited to adjudicating such a complex claim. However, the expedited nature of the process is demanded by the short time frame for the primaries. In my judgment, it makes more sense that you can use a process that is not very well suited than to say that you just can’t address the claim at all in a situation like this. In the latter case, you’d just have to allow the insurrectionist to appear on the ballot and thus effectively nullify Section 3 of the 14th Amendment. Neither option is good, but I think the latter makes less sense and is less true to the purpose of the law.

II. Is the Decision Good for the Country?

A. “It’s Better to Defeat Him at the Ballot Box”

Trumpsters are now complaining that the Colorado decision is “undemocratic”. Even Chris Christie, whose contempt of Trump has otherwise been completely open, attacked the decision, saying that Trump should not be barred from office by any court but should instead be defeated at the ballot box. Law professor Michael McConnell made a similar point on the Volokh Conspiracy site.

Christie would be correct if we could count on Trump to be defeated at the ballot box—that would be preferable from the standpoint of national cohesion. But, pace Christie, Republican voters are not going to do it. They don’t care that he’s an insurrectionist, and they are going to nominate him again regardless. They aren’t going to nominate Christie.

After getting the nomination, Trump has about even odds of getting elected President again. Trump is ahead in the polls, though that could change once Biden starts campaigning.

So the question is which is worse: Trump gets judicially disqualified and MAGA Republicans throw a fit, or Trump (with ~50% probability) returns to the White House? The second one is worse for democracy. It establishes the precedent that one can openly thumb one’s nose at the law, try to pass off fraudulent election certificates, etc., and then be richly rewarded.

Furthermore, Trump himself will be completely unrestrained in his second term. We don’t know specifically what he’ll do, but he’ll have no respect whatever for the Constitution, democracy, rule of law, or any other American ideals. He’ll have learned that he can do anything he likes, break any law, and get away with it. He will do everything in his power to fill the government with yes-men who also have utter contempt for American ideals. This is much more dangerous to democracy.

B. The Irony of Democracy

Granted, excluding a candidate from the ballot by court order is procedurally undemocratic—just in the straightforward sense that it limits the ability of voters to choose whatever they want. If you have a fetishistic, deontological attachment to democratic process, you might conclude that courts should let voters decide whether to have Trump.

But that was never our system. Our system was never one of unfettered or maximal democracy. It was always one of limited democracy. There are numerous other limitations on what the majority can do built into the Constitution—from the requirement that the President must be at least 35 years old, to the entire Bill of Rights.

Why? Because democracy is only an instrumental good. Democracy is good because it results in less oppression and misery than dictatorship. But too much democracy, or too pure of a democracy, can easily lead to dictatorship, simply because too many of the masses have deeply undemocratic, authoritarian attitudes. If you adhere to democracy to the point of letting voters vote to convert their society to a dictatorship, then you’ve defeated the whole point.

The irony of democracy is that it has to be protected from the masses, by the elites. We therefore need a balance between democracy and elitism. If the balance of power tips too far, either toward the masses or toward the elites, the system collapses into tyranny.

III. What Next?

If the U.S. Supreme Court overrules the Colorado decision, it will probably be for the reason given by the dissenters—that the court process wasn’t suited for adjudicating an insurrection claim, and Trump needs to be found guilty in a full trial. After reading the Colorado decision and the dissents, I think it’s a toss-up what the outcome will be at the USSC. The current Republican slant of the Court might give Trump an advantage, given that there’s a rational argument for the side of the dissenters. (If the legal question was completely clear, then they’d give the correct decision. But if it’s ambiguous, then their bias can play a role.)

The Supreme Court should affirm the Colorado decision and declare Trump ineligible for the Presidency. As discussed above, there’s a good legal argument for this. But they should do this even if they don’t agree with the legal reasoning, because preserving the relatively free society that we have is more important than preserving the technical details of Donald J. Trump’s procedural rights.