In ruling that Colorado — and other states — may not bar Donald Trump from the ballot, the Supreme Court has provided necessary clarity about the reach of a once-obscure section of the 14th Amendment aimed at preventing insurrectionists from holding public office.
At a time of paralyzing political polarization, it is notable that the court’s holding on Monday was supported by all nine justices. A unanimous decision on this highly partisan issue is welcome, though three Democratic appointees complained that the unsigned majority opinion went too far in saying that Congress must act to enforce the insurrection provision.
It is now clear that if Trump is to be prevented from returning to the White House, he must be rejected by the voters and denied a majority in the electoral college. Whatever the legal merits of the court’s ruling, its chief consequence is to bolster democracy.
The Colorado Supreme Court effectively held that under the Constitution voters could be denied the right to decide whether Trump is suitable for a second term. Its ruling barred Trump from the state’s Republican primary ballot under Section 3 of the 14th Amendment. That provision says that no person who had sworn an oath to support the Constitution may hold public office if that person “engaged in insurrection or rebellion against the same.”
At oral arguments in this case, Justice Elena Kagan, a Barack Obama appointee, seemed to channel the concerns of several justices when she raised the question of “why a single state should decide who gets to be president of the United States.”
Monday’s unsigned majority opinion picks up on that concern. It says that “state-by-state resolution of the question whether Section 3 bars a particular candidate for president from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that the president… represent[s] all the voters in the nation.”
All nine justices signed on to this worry about a “patchwork” result. But the three Democratic appointees and Justice Amy Coney Barrett, a Trump appointee, didn’t endorse another argument in the majority opinion: that Congress must act to authorize application of Section 3 to federal officeholders and candidates. In a separate opinion Justices Sonia Sotomayor, Ketanji Brown Jackson and Kagan wrote that the majority unnecessarily “shuts the door on other potential means of federal enforcement.”
This objection isn’t trivial, but it shouldn’t overshadow the agreement of all nine justices on the bottom line that states may not use Section 3 to disqualify presidential candidates. As Barrett observed in a brief opinion, “our differences are far less important than our unanimity: All nine justices agree on the outcome of this case. That is the message Americans should take home.”
The court wouldn’t have to struggle with these issues if Trump, after inspiring a riot at the Capitol with his self-interested claims of election fraud, had slunk out of politics. Officials or aggrieved voters in Colorado, California and other states might not have contemplated it at all if Republican politicians and voters had seen Trump for what he is: a narcissist who nearly destroyed our democracy with his attempts to overthrow the results of the 2020 election.
That alone should disqualify him in voters’ eyes.
—Los Angeles Times/TNS