The 14th Amendment is not going to save us from Donald Trump

I hate to be the bearer of bad news as the holiday season approaches, but Section Three of the Fourteenth Amendment will not ride a sleigh powered by eight days of pumpkin-spiced rocket fuel to stop Donald J. Trump from present for elections. president.

I know what the law says. For the uninitiated: Section Three of the Fourteenth Amendment states that no person who has ever sworn an oath to uphold the Constitution and who engages in “insurrection or rebellion against it” is eligible to run for office. new position. I know many have hoped that this provision would prevent Trump (and a group of other January 6 insurrectionists in Congress) from running for office again. But it won’t work, and at some point liberals will have to stop engaging in magical thinking.

Before even arriving at law Overall, we should be talking, as adults, about the realpolitik of what these Section III lawsuits, filed in state after state in an effort to exclude as many votes as possible, are asking the courts to do. . The lawsuits ask a random state court judge (or federal judge or panel of judges) to rule that the nation’s most popular Republican is ineligible to be president, under election laws of the State and the Constitution. They are asking judges to tell those who want to vote for Trump that they are not allowed to vote for him, and they are asking those judges to do so on their own authority and without the implicit support of the Army of the Potomac or of the 101st Airborne Division. . They want judges to do it even though those judges know that any decision excluding Trump from the ballot will eventually be appealed to the U.S. Supreme Court, a body made up of six justices chosen by Republican presidents, including three were handpicked. the very man they are supposed to cast the ballot on.

Who do this ? What judge wants to functionally hamper his career as an impartial arbiter for a case that will surely be invalidated by the Supreme Court at the first opportunity? Again, real words: what judge wants to do this, be overthrown, and still have to hire additional security guards for the rest of his life because he ruled that a man with a proven ability to incite his supporters of violence cannot run for office. ? People want judges to take all these risks based on a constitutional provision that has been functionally ignored for 150 years — and back when it was used to bar Southern officeholders who voted for secession to stand for election again, it had to be applied by a government. literal occupying army. Come on. Judges are human beings, not ChatGPT algorithms. The practical political reality of excluding Trump from the ballot was always going to prompt judges to find any legal, quasi-legal, or legal-sounding way to avoid doing so.

Once you understand that, you can understand why the lawsuits — largely brought by the nonprofit watchdog group Citizens for Responsibility and Ethics in Washington or by other private citizens — have utterly failed so far . It’s not that these lawsuits get the Constitution wrong: for what it’s worth, I remain convinced that Section Three should apply to Trump as obviously as it applied to Jefferson Davis. The problem is, no judge wants that smoke, and even if they did, the Republican-controlled Supreme Court would never remove the Republican nominee from the ballot. The judges don’t have the courage to do this and, frankly, I don’t blame them.

Instead, judges — including a federal judge appointed by President Barack Obama — used all their legal skills and tricks to try to keep Trump on voting. You can almost see their desperation in the variety of reasons they gave for rejecting the third section. Here’s a quick recap of some of them:

• In Florida, an Obama-appointed judge ruled that the people who filed the lawsuit did not have standing to challenge Trump’s inclusion on the ballot. In doing so, they avoided the question of whether Trump could be on the ballot or who would have the right to sue to stop him.
• In Michigan, a state judge ruled that no law in the state prevents Trump from participating in the primary and that only Congress can decide whether he is eligible to participate in the general election; This is convenient, since Congress happens to be controlled by many of the people who supported the insurrection in the first place. If Trump can’t run, many members of Congress can’t run either.
• In Minnesota, a panel of state judges also ruled that Trump was eligible in the primary, but allowed litigants to challenge him again if he ran in the general election. It’s worth pointing out that these justices are focused on primary runoff rules, when primary runoffs aren’t really the issue. If Trump is not eligible to hold office, then his ability to run in the primaries is irrelevant.

I don’t agree with any of these decisions, but you see what the judges are trying to do: avoid the issue and force someone else to make the decision. Yet last week’s decision in Colorado represents the most pathetic version of this trend. In that case, the state court judge said Trump “engaged in insurrection” but was unsure whether the third section applied to the president. I’m not making this up. The judge questioned whether serving as an “officer of the United States” (as is required for Section Three to apply) includes serving as President of the United States.

This is the kind of thing you write when you know the right answer but are afraid of the consequences of that answer.

There are still pending lawsuits against Trump in 17 states but, with four losses already, I doubt there is a judge in Arizona or Virginia who wants to be a hero. At this point, excluding Trump from the ballot seems more like a judge’s way to be indicted by a Republican state legislature as a way to prevent Trump from running as a Republican.