We have been discussing the nationwide effort to disqualify former President Donald Trump from ballots in key states under a novel theory using Section 3 of the 14th Amendment. Yesterday, a Michigan judge was the latest to dismiss the effort to prevent voters from being able to vote for Trump.
As many of you know, I have been a vocal critic of the theory as unfounded and dangerous. While figures like Harvard Professor Laurence Tribe have assured the public that Trump is clearly disqualified under the theory, it is based on unsustainable historical and legal interpretations in my view. For that reason, I have welcomed rulings to allow these claims to be reviewed on appeal. It has not fared well. While some have misrepresented past rulings, Tribe and others are still seeking a favorable judge.
State Judge James Robert Redford rejected the challenge and found that the courts lack the claimed authority under the theory. Judge Redford also rejected the effort of Michigan Secretary of State Jocelyn Benson (D) under state law to remove candidates from the ballot based on that provision.
An appeal is now expected to proceed and the matter could well end up in front of the Supreme Court.
Last week, the Minnesota Supreme Court ruled in a similar case that Trump could not be removed from the primary ballot in that state. Another ruling is expected soon out of Colorado.
I have previously addressed the constitutional basis for this claim. It is, in my view, wildly out of sync with the purpose of the amendment, which followed an actual rebellion, the Civil War.
As previously discussed, the 14th Amendment bars those who took the oath and then “engaged in insurrection or rebellion against the same.” It then adds that that disqualification can extend to those who have “given aid or comfort to the enemies thereof.” According to these experts, Jan. 6 was an “insurrection” and Trump gave “aid and comfort” to those who engaged in it by spreading election fraud claims and not immediately denouncing the violence.
But even the view that it was an “insurrection” is by no means a consensus. Polls have shown that most of the public view Jan. 6 for what it was: a protest that became a riot. One year after the riot, CBS News mostly downplayed and ignored the result of its own poll showing that 76 percent viewed it for what it was, as a “protest gone too far.” The view that it was an actual “insurrection” was far less settled, with almost half rejecting the claim, a division breaking along partisan lines.
Advocates of this theory like Benson are arguing that they are protecting democracy by denying the ability of tens of millions of Americans to vote for their preferred candidate. Nothing says democracy like barring the choice of voters. It is a practice that is common in nations like Iran where the government scrubs the ballots of unacceptable candidates.
Hopefully, these courts will expedite these rulings to allow the matter to reach the Supreme Court for a final and definitive ruling. These challenges are spreading uncertainty on the choices that will be allowed for voters — a dangerous and dysfunctional effort.
Here are the opinions: