In an unprecedented and controversial use of the Constitution’s insurrection clause, Colorado and Maine have disqualified former president Donald Trump from appearing on Republican primary ballots. In a 4-3 decision, the Colorado Supreme Court barred Trump from the ballot under the Constitution’s 14th Amendment reasoning that he incited an insurrection. Maine followed suit a few days later with Secretary of State, Sehnna Bellows (D), concluding “Mr. Trump engaged in [the January 6th] insurrection and thereby, is not qualified to be on the ballot.”
Whether Trump is permitted to remain on the ballot hinges on the interpretation of Section 3 of the 14th Amendment which reads: “no person shall be a Senator, or representative in Congress, or elector of President and Vice-President, or hold any office … who, having previously taken an oath, as a member of Congress, or as an officer of the United States, … shall have engaged in insurrection or rebellion against the same. . . .” The insurrection clause was ratified after the Civil War to block former confederates from gaining government positions. The controversy surrounds the clause’s proper interpretation and applicability to Trump.
To date, Trump has not been convicted of or charged with insurrection, though he has been charged with other crimes for attempting to overturn the 2020 election results. Critics of Trump’s removal from the ballot contend he is being denied due process and voters the right to select their preferred candidate, two fundamental rights safeguarded by the Constitution and Bill of Rights. In his dissenting opinion, Colorado Supreme Court Justice Samour wrote, “[o]ur government cannot deprive someone of the right to hold public office without due process of law.” U.S. Representative Jared Golden, a Maine Democrat who voted to impeach Donald Trump, observed that “We are a nation of laws” and “Until [Trump] is actually found guilty of the crime of insurrection, he should be allowed on the ballot.” While the insurrection clause does not expressly address whether a candidate must be convicted of participating in an insurrection for it to apply, the health of our democracy demands a fair and impartial adjudication of this issue with Trump afforded full due process rights.
Politicians on both sides of the aisle have expressed concern over the precedent of removing a presidential candidate from state ballots. In a country where both political parties have abused government power to attack or undermine political adversaries, this could set a dangerous precedent that further undercuts our democracy and electoral system. As Governor Ron DeSantis (R) stated, Maine’s ruling “opens up Pandora’s Box,” suggesting that both Republican and Democratic political figures will be emboldened to take similar actions against controversial candidates in the future. Courts in Florida, New Hampshire, California, and Michigan have dismissed calls for Trump’s removal, agreeing that state courts and secretaries of state do not and should not have the power to remove a presidential candidate from primary ballots. Michigan Secretary of State Jocelyn Benson (D) noted that “in our democracy, voters and political parties have the choice and freedom to vote,” and that “ballot access is not used as [a] political tool for disqualification.” Each of these states has called upon the U.S. Supreme Court, which will hear oral arguments for the Colorado case on February 8, to be the ultimate arbiter.
Regardless of how the Court rules, its decision will have long-lasting implications for our democracy. In our politically divided country, 51% of adults believe our democracy “is working ‘not too well’ or ‘not well at all’” and 62% believe that our democracy “could be at risk depending on who wins next fall.” These statistics underscore the legal quagmire facing the U.S. Supreme Court.
While Trump has damaged faith in national elections through his repeated “rigged election” rhetoric, states choosing to remove him from ballots based on an ambiguous clause undermine democracy at a time when public trust in our government is waning. Governor Newsom (D) astutely stated, “[t]here is no doubt that Donald Trump is a threat to our liberties and even our democracy” … “[b]ut, in California, we defeat candidates in the polls.” Political leaders need to be subject to the Constitution and held accountable for abuse of power. Traditionally, those consequences have come at the polls. So, before eliminating the right of citizens to vote for their candidate of choice, our democracy must ensure the full measure of due process has been given to Trump – a charge of insurrection not just asserted, but proven.
