At the Supreme Court argument on the Colorado election case, the comments of the Justices made it clear that the Court will rule, probably 9-0, that Donald Trump can remain on the ballot.[1] Yet a critical detail has been lost in the shuffle. A ruling that Trump can stay on the ballot does not mean that Trump would definitely be allowed to become President in 2025, even after winning the election. That is because Section 3 of the Fourteenth Amendment does not talk about ballot access. It never says that an insurrectionist cannot run for public office. Instead, it says that an insurrectionist who previously took an oath to support the Constitution shall not "hold any office, civil or military, under the United States." Thus, the proper time to challenge Trump's eligibility is any time before he takes office, not necessarily before he is placed on the ballot. The question of Trump's eligibility could remain open right up to January 20, 2025, and the people who vote for him, in the Republican primaries and the general election, may wind up throwing away their votes.
Right now the Democrats control the United States Senate and are only five votes away from controlling the House of Representatives. Suppose that in November, 2024 Donald Trump is elected President, but the Democrats win control of the House and Senate. When the new, Democratic-controlled Congress convenes on January 3, 2025, it could simply pass legislation finding that Donald Trump committed insurrection and is constitutionally ineligible to serve as President.
Of course Trump would immediately challenge this in court, but the challenge would fail. Trump's winning argument in the Colorado case- that Congress had not authorized private lawsuits to enforce Section 3- would not apply here, as Congress unquestionably has the power to enforce Section 3 on its own.[2] The people who voted for Trump would turn out to have voted for a man who is constitutionally ineligible to serve and who will be barred by Congress and the courts from taking office on January 20, 2025.
If this happens, the Vice President elect would act as President.[3] Thus anyone planning to vote for Trump in the Republican primaries or in the general election should know that they are taking a leap in the dark. You may be voting for a man who is legally ineligible to serve, we will not know the answer to this question until after the election, and the Vice Presidential nominee could wind up with the Presidency if Trump wins the election. A Supreme Court decision in the next month or so keeping Trump on the ballot will not validate his eligibility to hold office. The Supreme Court will likely rule that Trump must remain on the ballot because private lawsuits to take him off the ballot are not authorized by the 14th Amendment. This has nothing to do with the ability of a Democratic Congress to rule Trump ineligible in January, 2025.
To those who object that the Democrats would not have the courage to bar a man who has just won a Presidential election, that might be true, but then again it might not. The Democratic base hates Trump, and any Democratic Representatives or Senators who did not vote to ban Trump would be setting themselves up for a primary challenge in the next election. There is no way around the fact that a vote for Trump is a roll of the dice. He could win the election and still be barred from taking office, and we will not get an answer to the question of his legal eligibility until after the election, not before. Voting for Trump is like buying a house even though you know there’s a problem with the legal title, and you might have to spend all the purchase money without ever getting ownership of the house.
Thus, the Republican primary voters on Super Tuesday should know just how risky a vote for Trump is. If you love America, vote for Nikki Haley. Do not put America through the division and agony of electing a President who may be ineligible to serve. Do not choose upheaval when a good, conservative alternative is available.
And to the Democrats, who have been spectacularly inept in their opposition to Trump, I hope you will be forthright about your intentions. All Democratic congressional candidates should state, loudly and clearly, that even if Trump wins the Presidency they will vote to bar him as an insurrectionist under Section 3. That way, if this scenario comes to pass, no one will be able to say that the Democrats hid the ball. A Democratic Congressman who is elected on a platform of banning Trump under the 14th Amendment will have a mandate from the voters of his or her district to do so. Responsibility for the confusion and discord that will result would rest with the Republican primary voters who were obstinate enough to choose a nominee with a criminal record and questions about his eligibility hanging over his head.
These are trying times for American citizens. For my part, I have tried to make a contribution by writing this essay. The 14th Amendment creates a potential for a post-election constitutional crisis, and this issue has not yet been highlighted by even our country's most renowned legal commentators. I hope that the readers of this essay will join me in spreading the word about the issue.
[1] Ann E. Marimow and Patrick Marley, “Supreme Court poised to allow Trump to remain on Colorado ballot,” Washington Post, February 8, 2024 at 3:14 p.m., accessed February 10, 2024 at 7:14 a.m.
[2] The final sentence of the 14th Amendment reads “the Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” See also Katzenbach v. Morgan, 384 U.S. 641 (1966).
[3] The Twentieth Amendment, Section 3, provides that “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.”