MINOT — A legal argument against disgraced former President Donald Trump’s access to the ballot is taking shape around the country, though not in North Dakota yet.
The movement is built on the language of Section 3 of the 14th Amendment, which states: “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.”
A supermajority vote of Congress can override this prohibition; though, given how polarizing Trump is even among Republicans, it seems unlikely that would save him from this section of the Constitution being applied to his candidacy.
But does it apply?
Or, more importantly, should it apply?
Various litigants are filing lawsuits in states around the country, arguing that this section of our laws does apply to Trump. Those lawsuits haven’t reached North Dakota yet. Secretary of State Michael Howe, who would be central to any lawsuit filed in our state, told me before the Labor Day holiday that he’d heard “nothing” of any pending litigation here.
But that doesn’t mean it won’t happen. The way things are going, I suspect it probably will. It’s time for us to think about how we feel about all this.
A casual review of the facts would make it seem that the case against Trump is clear-cut.
He took the oath of office, swearing to uphold the Constitution, when he was first elected president in 2016. After losing in 2020, with lies about election fraud, Trump egged his supporters on to a violent attack on Congress on Jan. 6, 2021. He is currently under multiple indictments for crimes related to his attempts to overthrow the election, both at the national level and in Georgia.
But this is where things get complicated.
It’s worth considering the history of this section. It is a law created immediately after the horrors of the Civil War when revanchist Confederates were looking to reconstitute themselves in elected offices in Southern states. At that time, the intent of this bit of law was obvious. If you were a Confederate, if you aided in the rebellion against the United States of America, you were disqualified.
Applying this law in 2023 is a different matter. Who gets to decide who has and who has not “engaged in insurrection or rebellion” against the Constitution “or given aid or comfort to the enemies thereof”?
The Constitution is, unhelpfully, silent in these specifics.
My feeling is that disqualifying a candidate from office, using this section of the Constitution, requires due process to establish that the mentioned crimes were committed.
Moving forward to disqualify Trump from the ballot absent a conviction in a court of law for crimes related to rebellion and insurrection would be a terrible, terrible mistake for our republic.
The criminal charges against Trump pursued amid a national election have already put us in danger of each new election cycle descending into an exercise in one political party seeking to disqualify the other party’s candidates through criminal proceedings of varying degrees of merit.
Imagine Republicans attempting to disqualify Rep. Ilhan Omar of Minnesota for something like downplaying the threat of al-Qaida and seemingly comparing that terrorist organization to the United States military. Provocative comments, to be sure. Hateful, even, but are they enough to deprive the voters of Minnesota’s 5th Congressional District the opportunity to vote for her?
Tucker Carlson recently paid a visit to Viktor Orban’s Hungary, where he said that America’s antipathy toward Russia wasn’t rooted in that country’s bloody war of aggression against Ukraine, or objections to Vladimir Putin’s brutal regime, but in hostility toward Russia’s supposed Christianity.
Should that disqualify Carlson from holding any elected office in the country? As a practical matter of politics, yes it should, but as a legal argument based on the 14th Amendment? That’s risky territory.
All the more so when we consider how these disqualifications would play out at the state level. Imagine that several Democratic Secretaries of State, and perhaps even a few Republicans, allow Trump’s name to be removed from the ballot. Would the federal courts “actually stand aside as local officials exercise veto power over who’s a loyal enough American to be listed on the ballot?” David Frum asked in the Atlantic.
And if the courts allowed those decisions to stand, how many Americans would accept the legitimacy of a national election in which one candidate lost because millions of voters in various states couldn’t cast a ballot for him?
I detest Donald Trump. It is a shameful thing that he ever held the office of the presidency, but the only way to exorcise him from American politics is for Americans to vote against him.
Even then, Trump will never accept the legitimacy of an election he lost, but that’s Trump.
We, who oppose him, should be better than Trump.
Source: Inforum
