An insurrectionist will be on the ballot

It’s my Flaming Hydra debut! Like I said, very different from my standard Racket fare. Check it out:

Yesterday, the Supreme Court heard oral arguments in Trump v. Anderson, a case that could decide whether the 45th president is eligible to appear on ballots in his bid to become the 47th. Specifically, the question is whether Colorado can take Trump off the ballot for its March 5 Super Tuesday primary, based on their reading of Section 3 of the Fourteenth Amendment:

There are a few ways to slice that question. The court could rule on whether Trump’s well-documented incitement of the January 6, 2021, storming of the Capitol to prevent the ratification of his opponent’s victory counts as an “insurrection or rebellion against” the Constitution, as the district court ruled and the Colorado Supreme Court affirmed. It could rule on whether Section 3 is in force at all, or whether Congress would have to use its “power to enforce, by appropriate legislation, the provisions of this article,” as provided by the amendment’s Section 5.

If the justices’ questions are anything to go on (and for purposes of this newsletter, they’re all we’ve got), SCOTUS isn’t going to rule on any of those. Rather all nine justices — liberal, conservative, and whatever Clarence Thomas is alike — seemed to hone in on a much narrower question: whether, as Justice Kagan asked, “a single state should decide who gets to be president of the United States.”

I’m neither a lawyer nor a constitutional scholar. But that seems like a strange way to frame the issue to me. Kagan was literally asking that question from the Supreme Court’s dais; she and her eight colleagues were the ones being asked to decide how or if the Fourteenth Amendment applied in a ruling that would compel the state court. Also, who (other than potentially SCOTUS) is to say whether every other state would have to follow Colorado’s lead? Presidential candidates appear on certain states’ ballots and not others all the time. In 2020, according to one tracking service, there were at least 31 presidential candidates on at least one of the 51 state (and DC) ballots. Only three (Biden, Trump, and Libertarian Party nominee Jo Jorgensen) were on all. The Green Party’s Howie Hawkins was on just 30; seventeen were just allowed to run in one state, with Vermont’s insane presidential ballot responsible for most of them.

You might object and say, well, OK, but we all know that there are only going to be two remotely plausible presidential candidates this year, and keeping one from accessing the electoral votes of what might be considered a swing state — albeit one that has voted Democratic in every election since 2008 — gives the other a key advantage. To which I’d reply: First, get an editor, that sentence was way too long. Second, isn’t the Supreme Court’s primary job to decide what the law is? If Trump violated Section 3 of the Fourteenth Amendment by engaging in an insurrection, then he is ineligible to be president again, period; each state can then decide if they want their voters to waste a vote on an ineligible candidate. If not, it’s moot.

And if he is ineligible, but acknowledging that fact is deemed politically problematic for whatever reason, then Congress can “remove” that “disability” by a two-thirds vote. That is, after all, the branch empowered to “make or alter such Regulations” as to the "Times, Places and Manner of holding Elections,” under Article I, Section 4 of the Constitution (a power extended to presidential elections in various cases including Voting Rights Coalition v. Wilson (1995)). (And if you have any doubts that enough Democrats will fold on the issue in the House and Senate to muster a two-thirds majority even at the injury of their own party’s candidate, you aren’t familiar with the Democratic Party.)

None of that really matters though, because on Thursday the justices all but signaled what they are going to do: Punt. Maybe unanimously, maybe with a lackluster dissent and a series of overlapping concurrences. Perhaps with the liberals decrying federalism run amok and the conservatives’ clerks making whatever special pleading(s) they find most convenient that morning. (The dumbest one would be them accepting Trump's argument that Section 3 covers all other federal oath-takers except for the presidency, which would make him the only president in history exempt from it, as the first one to have held no previous position in government or the military.)

However they get there, it seems like a cinch that Trump is almost certainly going to be ordered back onto the Colorado ballot, and by extension all the other states’ ballots, and likely without any firm decision on the only real question here: Did Trump try to overthrow the government of the United States in late 2020 and early 2021 in order to hold onto power for himself? And, if given power again over the federal bureaucracy, military, and nuclear arsenal, what is going to keep him from trying it again?

That brings us to the question of what to do about it — a question, that I tried to signal above, is more political than legal. Again, a guy with no respect for the Constitution, a sectarian mentality, and no ethics other than those that serve his personal power and pecuniary gain has effectively a coin-flip chance of going back to the Oval Office. It’s the scenario the framers of both the Constitution and the Reconstruction amendments dreaded.

I have some sympathy, actually, for the position Justice Kavanaugh took in a question posed to Jason Murray, the lawyer for the Colorado voters — both former Republican elected officials, by the way — who filed the initial lawsuit to kick Trump off the ballot. Kavanaugh asked:

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