Barring Trump From the Ballot Cannot Save Democracy

I thought this would be obvious by now

“Unsurprisingly, the all-Democrat appointed Colorado Supreme Court has ruled against President Trump, supporting a Soros-funded, left-wing group’s scheme to interfere in an election on behalf of Crooked Joe Biden by removing President Trump’s name from the ballot and eliminating the rights of Colorado voters to vote for the candidate of their choice.”

That’s how Steven Cheung, a spokesman for Donald Trump’s presidential campaign, greeted the decision by the Colorado Supreme Court to ban Trump from the ballot on the grounds that he engaged in insurrection and was therefore ineligible to hold public office under Section 3 of the Fourteenth Amendment.

I dismiss as a matter of course the campaign spokesman’s statement. I haven’t read the opinion, but I assume the Colorado Supreme Court acted in good faith, and I assume the opposite about the Trump campaign. But that’s me, and you, dear reader, can decide for yourself what that reflects on my part: a healthy level of trust in our institutions; a charming naïveté; or despicable political biases of my own. Regardless, I also assume that the statement reflects how the average Trump supporter would view the matter, if not immediately then certainly after the Trump campaign is through raging at them about it. And that’s the problem with trying to use judicial means to solve political problems: it doesn’t solve the problems, and it undermines the judicial system in the process.

I’ve written on this subject before in the context of Trump’s many indictments, and I haven’t changed my mind on that subject one whit. But at least those have the form of normal criminal cases, involving crimes alleged to have been committed by Trump before, during or after holding office—matters that it is normal for courts to decide, and that do not involve direct interference in the workings of democracy. The Colorado Supreme Court, by contrast, is not ruling on a criminal matter, but on a question of eligibility for office. That’s a subject of extreme sensitivity for democratic legitimacy, so to preserve that legitimacy the qualifications need to be absolutely cut and dried. Which, in one sense, it is: the constitution is clear that officers who swore an oath to defend the constitution who then engaged in insurrection or rebellion against the United States are ineligible for office. But Trump has not been convicted of insurrection as a criminal matter. On the contrary, he was charged with incitement of insurrection in his second impeachment, was tried, and was acquitted by the Senate, the body designated by the constitution to try such impeachments.

Since the Colorado Supreme Court nonetheless has concluded that he did engage in insurrection, in such clear terms that it would disqualify him from office—precisely the penalty that conviction in the impeachment would have imposed—it is very hard to escape the conclusion that they simply think the Senate got it wrong. Which they did! I also think the Senate got it wrong, in a catastrophic dereliction of duty that should have inspired popular outrage and the determination to drive those cowardly senators into ignominious retirement. But how is the Colorado Supreme Court—or the United States Supreme Court, for that matter—empowered to overrule the Senate on this question? And if you have a theory about how they are, how is that theory supposed to be persuasive to people who do not agree with the conclusion, and will therefore view their decision as a transparent judicial coup?

Lest we forget, the shoe was on the other foot only a few elections ago. In Bush v. Gore, the United States Supreme Court arrogated to itself the power to decide who had won the 2000 election. They did not have to do this; they could have let the increasingly ugly process continue to take its course. That might have meant that competing slates of electors were sent to Congress, which would have left Congress the responsibility for deciding which to approve. It also might have meant that no slate of electors was sent to Congress from Florida, such that neither candidate would have won a majority in the Electoral College—which, again, would have meant Congress would have to decide the winner. We could, in other words, have seen a repeat of the 1876 or 1824 elections, and if we had, the responsibility for the legitimacy of the result would have rested on Congress’s shoulders—narrow ones, to be sure, but ones elected by the people. Instead, the Supreme Court concluded that deciding the matter themselves would confer greater legitimacy on the result. This conclusion was supreme only in its misguidedness.

So, too, with the idea of barring Trump from the ballot—or from taking office—on the grounds that he is ineligible. Congress had the opportunity and the responsibility to declare him ineligible. They declined, because Republicans feared the consequences of angering Trump’s supporters within the party. If the court system bars Trump from running, the same anger will turn on it, stoked to maximum fury by Trump himself, who has always benefitted most when he is able to posture as the enemy of a corrupt system. And his party will be behind him, all the way, as they already are: the same representatives who declined to convict Trump on the grounds that it was more proper for the courts to handle the matter now, predictably, rail against the courts as corrupt for daring to prosecute him, to say nothing of barring him from the ballot.

There is no judicial substitute for political courage, and no judicial substitute for political victory. Yes, Trump attempted to stage a coup against the government of which he was the head at the time—a farcical, absurd coup, but a coup nonetheless. That should make him manifestly unfit for any public office. It is obscene that the country is even considering returning him to the presidency—but the country is considering him. More than considering him: he is at least an even-odds bet to win. The people and their representatives, in other words, do not agree that he is unfit. In our system they are sovereign; the constitution’s force as law and the authority of the courts to enforce that law all derive from them.

At the point where we no longer consider that dispositive, we’re no longer trying to save democracy. We’re just debating which way we would prefer to see it abrogated.