It was always a forlorn and impractical hope for legal challengers to try to get Donald Trump booted from the ballot on the grounds that he “engaged in insurrection.” Nothing similar had ever been seriously tried before against a major presidential candidate — in part, of course, because Trump’s behavior was so outside the norm.
With no Supreme Court precedent and almost no judicial precedent on Section 3 of the 14th Amendment, disqualification lawsuits faced a blizzard of unsettled and unprecedented legal questions. These included the meaning of “insurrection” and “engaging” in it, what offices were covered by Section 3’s disqualifications, and what procedures were proper for enforcing it. Trump only had to win on one, and he did. The Supreme Court ruled unanimously that state courts cannot disqualify candidates from federal office — at least, not unless Congress authorizes them to do so, which it has not.
Having looked upon the shoddy handiwork of the Colorado Supreme Court and the Maine secretary of state, the Court balked at letting state courts enforce Section 3. In doing so, it has saved the republic from the piecemeal and inevitably retaliatory cycle of rogue courts adopting elastic and standardless definitions of what it means to engage in insurrection. The Court also seems to have foreclosed anyone but Congress from enforcing Section 3 either before or after the election. That, too, reduces the likelihood of extralegal mischief and street violence. All to the good.
Nonetheless, we remain concerned that the Court, in its haste to restore the normal democratic order and preserve the separation of federal, state, legislative, and judicial powers, took the wrong route. It allowed state courts to enforce Section 3 against candidates for state office but not federal office — a distinction found nowhere in the text and not significantly debated in the drafting and ratification of Section 3. That gives unduly short shrift to the preeminent role the Constitution assigns to states in conducting elections to federal office. For example, the Court left unclear whether its reasoning bars a state from excluding from the ballot a candidate for federal office who is not a citizen or will not meet the required age when elected.
By leaving the whole matter in the hands of Congress, the Court also increased the odds that Democrats — especially if they retake the House — might refuse to certify a Trump victory. The House could not prevent him taking office unless the Senate joins it, but Democrats could do a lot of damage by provoking such a dispute — and leading House Democrats have signaled that they feel bound to do so by having voted to impeach Trump on grounds of insurrection in January 2021. If Trump wins, his is likely to be the third consecutive Republican victory in a presidential election to face a challenge in Congress — and of course would follow challenges to President Biden’s election in 2020. This is deeply unhealthy.
The better path, as we have argued consistently, was for the Court to rule on the basis of the explicit text of Section 3: Trump did not engage in insurrection in the sense meant by the Constitution. Neither did other officials who may have fanned the flames before the fact but took no active role in the rioting on January 6. No court will now decide whether Trump is an insurrectionist. None of the dozens of criminal charges against him accuse him of being one. The decision will, instead, be made by the voters.