Dear All:
Of possible interest.
Bruce
Slate (November 13, 2023)
The Supreme Court Needs to Decide These Trump Cases ASAP to Prevent a Jan. 6 Repeat
By Bruce Ackerman
at
https://slate.com/news-and-politics/2023/11/supreme-court-trump-cases-jan-6-repeat.html
Does the Constitution bar Donald Trump from running again for the presidency?
A number of courts have been asked to decide whether the 14th Amendment disqualifies Trump from a second term, given his activities on Jan. 6. The key provision
is Section 3. It expressly prohibits “any person” from holding “any office” if they have sworn to uphold the Constitution “as an officer of the United States” and have subsequently “engaged in insurrection or rebellion against the same, or given aid or comfort
to the enemies thereof.” In Colorado, closing arguments
will take place this week in a trial aimed at keeping Trump off the primary ballot. And in a remarkably fast ruling, the Minnesota Supreme Court last week held that state law
does not block a political party from allowing unqualified candidates to run in its primary, and so the secretary of state could go ahead and print a Republican ballot with Trump’s name on it. The court, notably, did not rule on whether or not Trump was
unqualified, saying that the question would have to wait for another day.
The Minnesota decision and the looming Colorado case will rapidly move to the Supreme Court in Washington for a decisive resolution of the meaning of the disqualification
clause. Normally, the justices would take months to consider the merits of such an important issue and reach a decision only in June 2024, at the end of their present term. Nevertheless, it would be a tragic mistake for the court to delay its decision when
the two cases arrive on its docket. After all, the first Republican primary is scheduled for Feb. 24. Colorado and Minnesota will be among 15 states holding a Republican primary on Super Tuesday, March 7. By the end of March, voters will
have already chosen more than half the delegates to the Republican National Convention. If the court doesn’t resolve the question of Trump’s qualifications by mid-February, its passivity will predictably lead to a shattering crisis in the coming presidential
election.
To be sure, if the justices do respond rapidly, they likely won’t reach a unanimous opinion on Trump’s eligibility for a second term in office. Nevertheless, regardless of
the outcome of any likely split decision, the majority will have saved the country from an even worse fate.
Without a clear ruling from Washington, different states will reach different decisions on whether Trump is qualified for a second term as president. This will split the
nation into two parts in the coming campaign for the White House. In some of the states, Trump will run as the Republican candidate. In others, the GOP will designate a stand-in candidate in its effort to deprive Biden of an Electoral College majority on Election
Day. Such a three-candidate race will culminate in a shattering tragedy on Jan. 20, 2025, when the next president is required to take the oath “to preserve, protect, and defend the Constitution of the United States.”
In short, when the Colorado and Minnesota cases arrive in Washington, the Supreme Court will confront a desperate race against time. If it fails to decide the cases rapidly,
it will provoke a constitutional crisis once the polls close and each state decides who won the election. Under current law, state legislatures must report their Electoral College winners in time for Vice President Kamala Harris to report the results to a
joint session of Congress meeting on Jan. 6, 2025. Once she inspects the ballots, she is likely to find that none of the three candidates—neither Biden, nor Trump, nor Trump’s proxy—has won a majority of the electoral votes. At this point, Harris will confront
a dilemma that will make Vice President Mike Pence’s predicament in 2021 seem modest by comparison.
The last time a candidate failed to win a majority was two centuries ago, when John Adams and Thomas Jefferson received precisely the same number of electoral votes in the
election of 1800. In response, the Federalists tried to swing key congressmen to shift their votes in favor of a compromise candidate: Aaron Burr. Given all the wheeling and dealing, the joint session that year conducted 35 ballots under the applicable procedures—without
any definitive conclusion.
When Jefferson finally emerged triumphant, he was determined to make sure that a similar tragedy would never recur by gaining the enactment of the 12th Amendment
in 1804. Yet the amendment eliminated only the “tied vote” problem that had arisen four years earlier. Its elaborate, 400-word text, when applied in 2024, will have explosive consequences that Jeffersonians could not have even imagined.
For starters, the amendment gives the job of choosing the president entirely to the House, while assigning the vice presidency exclusively to the Senate. It explicitly provides,
moreover, that the House must apply a special rule for selecting a president if no candidate gets an Electoral College majority. When this happens, “the votes shall be taken by states, the representation from each state having one vote.” This explicit constitutional
command stands in sharp contrast to the rule prevailing on every other issue considered by the House, in which the 52 representatives from California (population 40 million) have far greater power than the single representative from Wyoming (population 600,000).
Its real-world effect likely will be to grant House Republicans the power to make this crucial decision, since Democratic seats are disproportionately concentrated in highly populated states.
This means that, even if Biden wins a decisive majority of the popular vote nationwide, House Republicans can nevertheless decide to make Trump president. Moreover, they
will have a straightforward way of justifying their decision. They will emphasize that the states that disqualified Trump had prevented their voters from showing that they vastly preferred him to Biden. Instead, the best they could do was to vote for his proxy,
who lacked Trump’s magnetic appeal. As a consequence, House Republicans will claim that they are defending democracy in deploying the “one state, one vote” rule on behalf of Trump—since he would have won the popular vote on a nationwide basis if Americans
had been given a nationwide chance to express their support for him in his campaign against Biden. In contrast, Democrats will claim that Trump was rightly disqualified under the 14th Amendment after his “insurrectionary” activities of Jan. 6, 2021—and
that the big mistake was allowing him to run anywhere at all.
To be sure, if the Supreme Court allows the triple-candidacy scenario to unfold, both Republicans and Democrats will be shouting out their constitutional counterarguments
long before the joint session is scheduled to convene. As the political confrontation escalates, violence would seem inevitable. Any peaceful transition to a new administration will probably be impossible.
Yet, all this can be prevented—but only if the Supreme Court acts quickly. It is the only institution that can plausibly assure Americans that they all will be voting on
the same two candidates when they go to the polls in November.
The point of this essay is to sound the alarm before it is too late.