As if we needed more uncertainty in our electoral process, consider these two quite different decisions that were made last week about whether Donald Trump should be disqualified from running for president.
In Maine, Democratic Secretary of State Shenna Bellows ruled that Trump should be disqualified from running in that state’s Republican primary. Across the country, California’s secretary of state, Shirley N. Weber, reached the opposite conclusion.
Unlike Bellows, Weber “included former President Donald Trump on the certified list of candidates…for the state’s March 5 primary.” But she openly acknowledged the difficulty that the question of disqualifying the former president posed for her and other election officials.
“Removing a candidate from the ballot under Section Three of the Fourteenth Amendment,” Weber said, “is not something my office takes lightly and is not as simple as the requirement that a person be at least 35 years old to be president.”
The Trump disqualification question is not the kind that secretaries of state and other election officials are usually called on to answer. The below-the-radar quality of their work is a seldom appreciated strength in a well-functioning democracy, one that inspires confidence in the integrity of the electoral process and the decisions of those who control access to the ballot.
The fact that they have reached different conclusions about Trump’s eligibility, on the heels of the Colorado Supreme Court’s opinion disqualifying the former president from appearing on its primary ballot and the opposite decisions made in Michigan, Minnesota and New Hampshire, only adds urgency to the need for the United States Supreme Court to step in and right the ship by saying, one way or the other, whether Trump engaged in an insurrection and is disqualified under Section 3 of the 14th Amendment.
All of this adds to the unfolding chaos and drama as Americans get ready to start casting ballots in the 2024 presidential primary season — and is a further blow to citizens’ already shaken faith in American democracy.
Polls show that, today, only about 1 in 10 give “high ratings to the way democracy is working in the United States or how well it represents the interests of most Americans.”
Other polls have found that less than half — 45 percent — of Americans have “complete or a great deal of confidence in the fairness of elections (22% say they have some confidence and 33% say they have a little or no confidence).”
Moreover, in a 2022 CNN poll, “about half of Americans, 48%,” said “they think it is at least somewhat likely that in the next few years, some elected officials will successfully overturn the results of a US election because their party did not win.”
That is why the Supreme Court should grant the request made by six of the plaintiffs in the Colorado case to fast-track its review of their state’s supreme court ruling, “to reduce voter confusion and ensure that primary voters cast their vote knowing whether Trump is disqualified from the Presidency.”
Republicans in Colorado are urging the high court to reverse the state’s ruling and specifically find that “The office of the presidency is not covered by the 14th Amendment, the insurrection clause is not ‘self-executing’ — meaning Congress alone must enforce it, and states cannot make that determination on their own — and that by kicking Trump off the primary ballot, the state Republican Party’s First Amendment rights of association have been violated.”
While Secretary of State Weber did not explain why she reached the conclusion she did in California, Bellows issued a 34-page opinion justifying her decision in the state of Maine, diverging from the position of the Colorado Republican Party on every point.
As to whether Section 3 of the 14th Amendment applies to candidates for president, Bellows said that it does because “the presidency is an ‘office, civil or military, under the United States,’ and the President is an ‘officer of the United States.’” The U.S. Constitution, she wrote, “repeatedly refers to the presidency as an office.”
The history of Section 3, Bellows observed, also “firmly supports the idea that it covers the presidency. … Members of Congress believed the presidency to constitute an office when debating the language of Section Three, as did contemporaries outside of Congress, including those who sought to keep Jefferson Davis from the presidency.”
On the question about whether Congress needs to act before a state can make a determination under Section 3, Bellows concluded that “no Congressional action is necessary to render effective the qualification set forth in Section Three.” The Supreme Court, she said, “has described the Fourteenth Amendment as ‘undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing set of circumstances.’”
“It stands to reason,” Bellows argued, “that, like Section One of the Fourteenth Amendment, which the Supreme Court has recognized is self-executing … Section Three requires no Congressional action in order to become effective.”
Finally, unlike the Colorado Republican Pasty, Bellows concluded that Donald Trump had indeed engaged in an insurrection and that no First Amendment principle would be offended if he were disqualified. As she said, “Mr. Trump cites no precedent—and I am unaware of any—that permits the First Amendment to override a qualification for public office.”
Section 3 of the 14th Amendment, Bellow held, “is not a criminal penalty. … It is simply a qualification for office. … [and First Amendment principles] do not override the clear command of Section Three of the Fourteenth Amendment, namely that those who orchestrate violence against our government may not wield the levers of its power.”
So there we have it.
The differences between Democrat Bellows and the Colorado Republican Party on such fundamental matters are further reasons why Americans might think that the Trump disqualification issue is just another skirmish in a highly polarized political environment. Or, as the Trump campaign alleged in the wake of Bellows’s decision, that “We are witnessing, in real-time, the attempted theft of an election and the disenfranchisement of the American voter.”
As Professor Richard Hasen recently observed, “The pressure to disqualify Trump is only going to grow until there’s a final resolution of the question.” Only a Supreme Court decision can alleviate that pressure and put to rest the radically divergent views about the meaning and application of Section 3 of the 14th Amendment.
What former Supreme Justice Robert Jackson said 70 years ago about the court as a whole is particularly applicable in the Trump disqualification cases: “We are not final because we are infallible, but we are infallible only because we are final.”
Only the court’s final decision can let election officials like Bellows and Weber get out of the limelight and back to the important work of running our elections.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.
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