The U.S. Supreme Court spared our democracy disruption but left it vulnerable to far worse. Concerned a conflicting “patchwork” of state election laws could result in “chaos,” the court ruled unanimously in Trump v. Anderson that states like Colorado cannot uphold the 14th Amendment’s injunction against former officeholders who have engaged in insurrection. Donald Trump will stay on the ballot.
This concludes a journey that began August 21, 2023, when local attorney and friend Mario Nicolais sent me a draft of the suit. I had heard two legal scholars with the Federalist Society had concluded likewise — Trump was ineligible to run according to the Constitution. As a staunch Republican critic of the ex-president’s actions after the 2020 election, Nicolais thought I would be interested.
That week I spoke with Donald Sherman, the deputy director of Citizens for Responsibility and Ethics (CREW), the firm leading the effort. Did it bother me CREW leaned left? No. Over the past 30 years, I have worked with Democrats on school choice, pro-life, and animal welfare policies. Despite differences in opinion, I count many Democrats as friends.
In fact, at that moment, I thought of them. If a politician on the left had tried to disenfranchise me, as Trump did when he attempted to overturn the 2020 election, I would want Democrats to act on my behalf. Could I ask of others what I would not do myself?
After joining the suit, multiple friends on the right and left voiced support. Other friends were concerned. Did we risk making Trump a martyr? Were we opening a Pandora’s Box allowing officials to remove any candidate for any reason? A tough dilemma demands we weigh the unintended consequences of acting and of not acting. Allowing an insurrectionist on the ballot invites future politicians to do likewise. That is the more ominous outcome.
Despite expectations, the suit preceded.
Sitting in the U.S. Supreme Court chamber last month, I remembered how I, a starry-eyed 20-something-year-old, once sat there with Justice Clarence Thomas as he talked about his favorite play. Inspired, I later rented “A Man for All Seasons” and memorized the very exchange Thomas quoted that day: “And when the last law was down, and the Devil turned ‘round on you, where would you hide Roper, the laws all being flat?”
Here I was again, now sitting next to Colorado election lawyer Martha Tierney. Nicolais was there, too. Rows away sat former Senate Majority Leader Norma Anderson, Chris Castilian, the former executive director of Great Outdoors Colorado, and former Congresswoman Claudine Cmarada. Lawyers of the Colorado firm Olson Grimsley and DC-based CREW lawyers and staff were there or close by. Our group wasn’t merely bipartisan; it was multigenerational and multiethnic, all united in purpose and the affection that grows from it.
Our lawyer Jason Murray, peppered with questions from all sides, sometimes without a chance to answer, represented us with skill and conviction. Nevertheless, we were worried; the justices’ questions felt like most had made up their minds.
Outside, the day was cool and sunny. Beyond the bank of press cameras stood the Capitol, where I had once given tours. A lifetime had passed since I was a congressional staffer.
Our pessimism that day was not unwarranted; this week, the court issued a unanimous ruling barring states from upholding the disqualification clause in the 14th Amendment. The majority opinion went a step further by claiming Congress has the sole prerogative to Section 3. Separate opinions by Justice Amy Coney Barrett and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson maintain states cannot enforce Section 3 of the 14th Amendment in an ad-hoc way that impacts federal election results. All four justices, however, questioned the majority’s extraconstitutional assertion that only Congress can act. The amendment states, “Congress shall have power to enforce,” not “Congress alone.”
Sotomayor et al. predicted that by deputizing Congress, the majority had insulated future insurrectionists from challenges. Congressmen and women are reluctant to hold their own accountable. Even when memories of Jan. 6 were still fresh, the Senate could not muster the two-thirds vote needed to convict Trump and disqualify him from office. The largest bipartisan vote for impeachment of a president in U.S. history, it was nonetheless ten votes short. The amnesia of self-interest has erased whatever consternation Republican leaders felt then, and they are less likely to act now.
By federalizing enforcement, the court majority effectively nullified the third clause of the 14th Amendment without formally amending the Constitution. The minority can rejoice their erstwhile originalist colleagues now embrace a “living constitution.” Meanwhile, a group of citizens can no longer contest the eligibility of a candidate.
While the nation can now anticipate a less complicated election, the price of expediency will come due later. With a disabled disqualification clause, there is little to bar an officeholder who incites violence in pursuit of power from running again.
The authors of the 14th Amendment understood too well the danger. They knew voters would reelect the men who, rather than accept the 1860 election results, goaded them to war. People will follow to the grave charismatic politicians who skillfully cultivate their grievances, fears, and ambitions. The destructive power of demagogues sometimes cannot be restrained by votes; it must be stopped by law. They were determined not to let it happen again. As Sen. Peter Van Winkle noted in debate, “This [clause] is to go into our Constitution and to stand to govern future insurrection as well as the present.”
The provision gathered dust until Trump attempted to overturn an election and prevent the transfer of power by deceit, intimidation, and, ultimately, violence.
It doesn’t take much of an imagination to see a future Jan. 6 in an even more divisive time, where a bigger crowd with better weapons comes to the aid of a demagogue. Thanks to this week’s court ruling, if such a politician failed at insurrection, he could simply run again. There are worse things than chaos.
Krista L. Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer
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