Supreme Court should decide Trump’s Ohio ballot fate
David Madden’s Jan. 9 column ably summarizes several of the arguments made to keep Donald Trump off the Ohio ballot based on a reading of Section 3 of the Fourteenth Amendment. The arguments are serious ones that need careful consideration.
Yet his conclusion seems to me unwarranted. “We should demand [Secretary of State] LaRose follow the Constitution, take the advice of members of the Federalist Society, and remove Trump from the Ohio ballot. The Republic’s preservation demands it.”
Whether or not Section 3 bars Mr. Trump from further service is precisely the question that is unresolved in the law. Yes, members of the Federalist Society claim Section 3 prohibits Trump from serving again as President, but
members of the Federalist Society disagree. While four members of the Colorado Supreme Court have ruled against Trump, three other members of that court consider their colleagues quite mistaken. The Colorado decision will be taken up by the U.S.
Supreme Court — for Ohio to remove Trump from the ballot seems unnecessary and unwise.
For the matter is complex. Section 3 is not limited in its application to former Confederates to be sure. But those former Confederates were foremost on their minds. As a result, Congress has done little since to define key terms.
As a result, we have little statutory guidance for how to implement Section 3. The text is explicit in applying to members of the Senate and House, and to electors for President, but the President is not specifically cited. Does the phrase “any office, civil or military, of the United States” include the President? That is far from certain. The text refers to those who “shall have engaged in insurrection or rebellion against the same [United States], or given aid to the enemies thereof.” But was Jan. 6 an insurrection? Hundreds of indictments related to Jan. 6 have been issued, but none of them are for insurrection, which remains a federal crime. Would some of the behavior on Jan. 6 qualify as an insurrection, according to the understanding of the word in the 1860s? Or does that matter, if the modern law of insurrection does not apply?
Can a state court or other state actor deem someone guilty of insurrection who has not been indicted for that crime? Does that person not have the right to due process that is also enshrined in the Fourteenth Amendment (a right that is far clearer in our judicial precedents and our statutes than the issue before us)?
A person in Section 3 is not allowed to office. But can that person for the office, since the disability could be removed by Congress before January 20, 2025? And not incidentally, what does it mean to “engage” in insurrection?
All of these questions must be addressed, and by the Supreme Court. And with so little guidance from statutes, Congress or judicial precedents, the constitutional issues appear quite ambiguous. Ambiguity is a poor basis upon which to remove a leading candidate for President.
I am doubtful the Constitution necessitates Mr. Trump’s removal from the ballot, and I am quite confident the republic’s “preservation” does not depend upon it. Mr. LaRose’s best course of action is prudence, and prudence would suggest waiting on the Supreme Court.