Saving American Democracy From Donald Trump-- Does the Fourteenth Amendment Provide a Solution?

 Winston Churchill once exclaimed that " democracy is the worst form of government, except for all those

other forms that have been tried from time to time."  With democracy facing challenges in the US the likes that perhaps not seen since the Civil War, the question is what to do. 

            This question takes on exceptional salience with the coming 2024 presidential elections and the prospect that Donald Trump could again be re-elected.   This has prompted some to call for some to employ the Fourteenth Amendment to declare Trump an insurrectionist and declare him ineligible for office.  As attractive as this solution may sound, it is a dangerous tool to solve  a pressing problem.

            Democracies can produce their own antithesis. The Democratic German Weimar Republic elected Hitler and the Nazis who annihilated the popular government. Across the world we see similar problems in Hungary, Poland, and perhaps Israel.  Our constitutional framers saw this potential too.

Democracy, including that in the US, is an experiment in the people ruling, and it is still not clear if it works.  The American Experiment according to historian James McGregor Burns was that of being the first popular government in history. While one can challenge whether the elite framers who were slaveholders truly were interested  in popular government, let’s assume they were.  For James Madison, perhaps the principal architect of the Constitution and one of the authors of the Federalist Papers the challenge of popular government or what we call representative democracy today is to protect it from majority faction, mob rule, populism, or what others have called the tyranny of the majority.

The fear was that the passions of the people would swell up and produce a majority faction, defined as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

The political solution to the problem of  populism was  creating a system placing breaks on the mobilization of power through separation of powers, checks and balances, federalism, staggered political terms, and an electoral college.  Yet somewhere along the line these mechanisms have failed .

Political science research tells  us that democracies need elite and mass support to work.  Yet polls suggest the American public increasingly worries about  our democracy or no longer trusts it, and many elites too have lost confidence in it.  Among those Donald Trump.

No matter how you cut it, Trump is the worst nightmare of our constitutional framers.  He is why we had an electoral college to prevent his selection as president.  But nonetheless, he was elected once due to structural features in the electoral college that have reduced presidential elections down to what a few voters in a few swing states think.  We have a democracy that is not  purely majority rule nor  purely capable of containing the excesses of democracy.  We have a democracy where the wealth of a few drives the agenda.  We have a democracy where wealth inequalities as well as racial, geographic, and partisan polarization divide America.  We have a democracy with institutions designed for the eighteenth century seeking to operate in the twenty-first century.

Simply put, there are many reasons to fear the crisis of a house divided.  There are  many reasons why  the likes of Donald Trump appeal to so many.  Yet what is scary is that his efforts to overturn the 2020 election results  and whether as a result of it he should be considered a viable presidential candidate divide America.  It ought to be a no brainer—What he did on January 6, 2021, was  simply wrong.  He encouraged a storming of the US capitol with the goal of effecting a coup d’état and overturning an  election.

He is an insurrectionist and should be barred from office under Section Three of  the Fourteenth Amendment.  At least this is the conclusion of a forthcoming article co-written by a former professor and colleague of mine Michael Stokes Paulsen.

The Fourteenth Amendment was one of three Post-Civil War Amendments and a host of legislation adopted as part of the Reconstruction.  The relevant part of Section Three states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

The question is what does this section mean and how does it apply to Trump, if at all?

            Central to Paulsen’s argument is a historical analysis of the Amendment with an argument that concludes that the Section Three exclusion was written to address specific circumstances growing out of the Civil War and the need to prevent former Confederacy members from serving in office and impeding Reconstruction.  But one can read Section three more broadly, as is true of Section One with regards to Duer Process and Equal Protection, to still be part of the Constitution and applicable beyond the Civil War and Reconstruction.   We can read it to apply to future events and use it to exclude Trump from future office because of what he did on or around January 6, 2020.

            I am not a professional historian—I am trained with a Ph.D. in political science as well as a JD and master’s in law as well as advanced degrees in philosophy and astronomy.  It is possible that Paulsen is correct that Section Three applies beyond the facts of Civil War Reconstruction and it has the meaning  he ascribes to it.  However, I decided to defer to some of the best American legal historians regrading Section Three’s meaning.

             Urofsky and Finkelman’s A March of Liberty (volume I, p. 502) describes Section Three as a “severe sanction” to those who  held office before joining the Confederacy.   Kelly, Harbison, and Belz’s  The American Constitution (volume II, p. 333) as originally proposed  “unconditionally  disenfranchised  all participants in the late  rebellion until March 4, 1870.”  But many moderate rebellions objected to the provision as two severe and too temporary and therefore substituted the present language to prevent all those who formerly held office and engaged in rebellion from holding office unless permitted to do so by Congress.

            Foner’s The Second Founding (p. 85) dismisses Section Three  in one sentence as “long since faded into history.”  Foner’s masterpiece, Reconstruction:  America’s Unfinished Revolution acknowledges the Fourteenth Amendment can only be understood within the  content of the  1866 (257), the elections that year, and the fear that the present Andrew Johnson would undo efforts to  enfranchise former freed slaves (254).  Finally Maline and Rauch’s Empire for Liberty (volume II, p. 12) effectively ruled out all of the “South’s leaders” and was detested by  Southerners.

            At best historical evidence is mixed when it comes to the meaning and interpretation of Section Three.  Most  historians see it as time bound or limited to the circumstances immediately following the Civil War.   Yes, as Paulsen contends, other parts of the Fourteenth Amendment such as Section One may have a life beyond  the Civil War or Reconstruction, but just because one section is not limited by time and historical circumstances does not mean the entire Amendment is.

            The task here is not to criticize the historical claims.  One can concede the  history of Section Three and one can also concede that Trump encouraged an insurrection on January 6.  Yet it may nonetheless be bad policy to use Section Three to bar him from the office.

            Trump deserves to be punished for what he allegedly did.  This is why we have courts, due process, and rule of law. Let the criminal justice process do its job. Additionally, one has to feel uncomfortable  letting election officials make determinations of ballot access.  While such decisions are subject to judicial review, there is already a problem in the US with minor parties and candidates seeking ballot access and having to spend significant amounts of money to fight restrictive laws.  Granted their case is different from Trump’s but we should not empower more discretion in election officials to deny access to the ballot.

            Additionally, a generation ago in 2000 the Supreme Court’s Bush v. Gore  was criticized for resolving the election dispute in Florida.  Many said the Court picked the president.  Here if the Insurrection Clause is used to keep Trump off the Ballot,  courts again may determine who is the next president.  This is especially with the likelihood that the Supreme  Court may eventually review any lower court decision.

            But there is also a problem of precedent. Deny Trump access now and Section Three will turn into a partisan tool much in the same way the impeachment has eroded into gotcha politics.  In a polarized political environment such as the US is experiencing, keeping a candidate off the ballot does nothing to overcome that.

            Finally, keeping an opposition candidate off the ballot reeks of tactics that governments do in less than democratic states. 

            American democracy is in trouble and Trump is trouble for democracy.  He is a symptom of a deeper problem that keeping him off the ballot will not solve.  Short term political mobilization, especially in the critical five or six swing states that will decide the 2024 presidential election, is the solution.   Organize to defeat Trump.  But longer term there are major obstacles regarding race, class, and gender discrimination.  There are problems with election laws unfair to minor parties and candidates.  There is a need to address political disinformation.  The institutions of democracy need to be fixed.  Barring Trump from office will not accomplish that.

Can Trump Sue to Victory? The Math and Law are Beyond Unlikely

 By all accounts Joe Biden has won the US presidency.  It’s not official yet, but the math suggests he is

the president-elect.  Donald Trump refuses to concede, vowing to litigate and sue his way to victory and take his case to the Supreme Court where his three appointed Justices will deliver him a win.  This is Trump’s fantasy, as well as his supporters, and the fear of those who opposed him.  Is this scenario possible or likely?  Simply put, no–this is not Florida 2000 and Bush v Gore all over again.  Let us explore Trump’s case.

Technically Joe Biden has not yet won the presidency or any state yet.   The results in each state are not official yet.  There is a period after elections in the US where final counts are made and any errors are corrected.  This is normal.  During this period it is not unusual for small adjustments in vote counts to change.  Approximately two weeks after elections in each state a body called a canvassing board meets to certify the election results and eventually issue election certificates declaring winners.  This is when someone is officially the winner.  Up until this point candidates can make administrative challenges or recounts can occur.  Normally, only after the results have been certified can one go to court.

There are several hard date deadlines coming soon. Under federal law all disputes regarding  a state’s electoral votes need to be resolved by December 8.    This is so that if there is a challenge to them in Congress there is a presumption of validity for them.   This is the so-called safe harbor provision.  Federal law requires the electors to cast their ballots on December 14.    The Constitution requires Congress in a joint session on January 6, 2021, to certify the electoral vote count and her any challengers from members of Congress.  Finally, the Constitution says that the current term for the president expires at noon on January 20, 2021 when the new president takes overs.  Any litigation must respect these dates, with  it likely that any suits will need to be resolved by the December 8, deadline.

As on November 9, 2020, Joe Biden potentially has 279 electoral votes, nine more than the 270 needed to win the presidency.  This vote total includes Michigan (16), Nevada (6), Pennsylvania (20), and Wisconsin (10).  It does not include Arizona (11) and Georgia (16).  Biden is ahead in the latter two and likely to win both, pushing his total to 306 electoral votes.

For Trump to win he would need to then overturn 36 electoral votes, flipping at least three if not more states.

One way to do this is through a recount of votes.  Perhaps in demanding a recount in several states he can change the election outcome.  This is unlikely to succeed, especially in more than one state.  Ballot counting is highly accurate in the US, with statewide elections barely changing totals by more than a few hundred votes.  Biden’s margins of victory are sufficiently large enough in all these states that there is little chance they will change results.

The second alternative is the legal challenge route.  Individuals cannot sue in court just because they are mad.  They need to show a legal injury.  For Trump, there are several dubious legal arguments.

One, Trump will argue widespread voter fraud.  Trump has been arguing that such fraud exists for years but never has offered proof of it.  He did this before the election this year with allegations that vote by mail was rift with fraud.  He and his followers seem to insinuate that large numbers of dead, undocumented immigrants, or other persons vote.  If he has evidence of that his legal team needs to prove this in court.  So far lower courts have rejected claims of this and the evidence is overwhelming that there is no significant voter fraud of any type in America.  This belief in such is a defining legend for many Republicans.

But even if such fraud does exist, the president must prove it exists and to such an extent that  it affected the reliability and outcome of the election such that a new election is needed.  Rarely do judges order such an election because it is impossible to rerun an election, and that would especially be the case with a presidential election where there are strict time limits in place.  More likely, what Trump needs to show is that there was enough fraud that a large class of votes must be thrown out such that this number across several states will change the vote count.  This is an evidence issue and votes are not thrown out based on mere speculation or assertion.  In many cases, one needs to show  vote by vote why there is fraud.  Again, unlikely.

One argument being thrown out by Trump also is that votes received on or before election day which were cast by absentee ballot but not counted until after the election should not be counted.  The claim is that they violate the Federal Uniform Election law which requires the election to take place on a specific day (November 3, this year), and that any ballots counted after that date violate that federal law. This argument will fail.  States routinely count absentee ballots after election day.  Nothing in the federal law prohibits this.  Counting ballots received by election day are different from counting ballots received after election day and to which maybe the federal law applies, but Biden’s victory does not depend on these latter ballots.

Three, Trump has argued that his poll watchers or observers were denied access to viewing the ballot counting.  Lower courts have rejected that and upheld laws saying they must keep their distance from counters and do not have a right to lean over their shoulders.  This is to prevent intimidation.  These laws will be upheld.  But even if there is a violation here all that it will require is perhaps some recounting but it does not change the count.

Finally, Trump seems to claim some type of Bush v. Gore violation.  Bush v. Gore in 2000 was a constitutional Equal Protection violation in one state that involved the procedures for how to ascertain voter intent.  The case involved one state where the vote totals were only a few hundred apart.  The Court’s decision to halt the recount in 2000 was that it might go past the safe harbor provision.  It is hard to find a parallel Equal Protection violation here that would invoke Bush v Gore unless somehow one says that states are treating different classes of voters differently in ways that are constitutionally wrong.  This is a hard argument to make, especially across several states.  It would take a lot of legal maneuvering to get a case to the Supreme Court and it would take even more to do that to invalidate tens if not hundreds of thousands of votes across two or more states.  From a legal perspective, the chances here are impossible.

Maybe the real goal as some contend is for Trump to delay the electoral college votes from taking place in multiple states, and then throwing the election Congress as the Constitution provides.  Here is where Bush v. Gore may apply–the Supreme Court may simply do in litigation now as it did then to stop it before the December 8, safe harbor provision kicks in.  Despite fantasies and fears by  Republicans and Democrats, don’t count on congressional selection of Trump as president.

Overall, the president cannot litigate himself into a victory.  The math and law are against him.

Covid-19 and the Presidential Election: What if the States Picked the Electoral College Delegates?

What if we held a presidential election but  no one came?  The April  7, Wisconsin primary demonstrated the problems that occur when the right to vote and demands of presidential elections confront the reality of Covid-19 and shelter-in-place orders.  What if the coronavirus persists to the general election, impacting the ability of individuals to early vote or cast a ballot on November 3?  Ultimately, the states could select the presidential electors, or Congress could pick the president.  If so, who wins?

            Many worry about several presidential election scenarios.  One is that President Trump will postpone or cancel it.  Alone he cannot do that  because the date of federal elections is set by law as the first Tuesday following the first Monday in November.  Alone the president cannot cancel or move this date, unless somehow the Supreme Court would rule that the National Emergencies Act would allow him to override a law.  If it did, the Court would be going against the Wisconsin Supreme Court’s logic when it prevented Wisconsin Governor Tony Evers from issuing an executive order delaying the elections, ruling that the emergency powers given to him only allowed a setting aside of administrative rules and not statutes.

            Postposing the presidential election also does not work for constitutional reasons.  Section One of the Twentieth Amendment states that the term of the president shall end at noon on January 20.  If there is no election there is no president or vice-president after that date, with the vacancy then filled by then Article II, Section One, Clause 6 of the Constitution along with the Presidential Succession Act that would hand the presidency to the Speaker of the House, presumably Nancy Pelosi.

            Others have proposed expanding vote by mail as an option for 2020.  Congress is unlikely for partisan reasons to approve this, and even if it did it is not clear if all states have the infrastructure or capability to implement in time.  There are also questions about security, potential fraud, and the federal government overruling state election bureaus and telling them how to administer federal elections.

            There is one final failsafe—instead of holding elections to chose the presidential elections to pick the president, the states can go back and do what they originally did and what the Constitution allows—pick the electors themselves.

            Article II, Section One, Paragraph two entrusts to  state legislatures the authority to select the presidential electors.  As the Supreme Court reminded America in Bush v. Gore:  The “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”  It is merely by the grace of  state law we get to vote to select the electors who pick the president.  But nothing requires this, and presidential elections in the age of Covid-19 means state legislatures, in a public health crisis, could simply select the electors themselves.

            While letting state legislatures pick the electors may not be a good idea, consider what would happen if they did. It takes 270 electoral votes to win the presidency.  According to  Ballotpedia, there are 21 states where Republicans have a trifecta—controlling both houses of the legislature and the governorship—and Democrats have that in 15 states.  Assuming in those 36 states straight party line votes would award electoral votes by party, Donald Trump would start with 216, Joe Biden, the presumptive Democratic nominee, would have 195.  This leaves 14 states, with 127 electoral votes under split control.  These states are: Alaska, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, North Carolina, Pennsylvania, Vermont, and Wisconsin.  Again, according to Ballotpedia, of these 14 states, there are several where the legislatures have large enough majorities that they can override  the governor.

This means  move Kansas’ and Kentucky’s electoral votes to Trump since the Republicans control both house of the legislature and a simple majority can overrule the Democratic governor, and he  has 230.  Move  Maryland and Massachusetts to Biden along with  District of Columbia’s three electoral votes and he has 216.  This leaves 10 states, with 92 electoral votes under split control.

How might those remaining states vote?  Assume a compromise in each state where they allocated proportionally based on congressional districts and splitting the two electoral votes each state receives based on having two senators.  This adds ten electoral votes to each (Trump 240, Biden 226).  Now assume the distribution of electoral votes in these remaining ten states follows the congressional voting patterns in 2016.  Of these 72 districts, Trump won 50 in 2016 and Clinton  won 22.  Award these  the same to Trump and Biden and  2020, Trump wins the presidency with 290 electoral votes to Biden’s 248.

Alternatively, assume these ten states cannot hold November 3, elections and cannot reach a compromise on  how to award the electoral votes.  With neither Trump nor Biden possessing the required 270 electoral votes, Article II, Section One, Paragraph Three and the Twelfth Amendment call for the House of Representatives to pick the president, with each state getting one vote and the winner needing a majority of the states.  However, this is the House elected in November 2020, and they would not vote until sworn in, in January 2020. Currently, even though Democrats have an overall majority in the House, Republicans maintain a 26-22 partisan majority control of state congressional delegations, with Michigan and Pennsylvania tied.  Assume no shift in partisan control, Trump wins. 

Canceling the popular vote to select the electors and decide the presidential race is a highly unlikely scenario.  But were it to occur the odds presently favor a Trump victory again in the electoral college, or  possibly in the House were it to go that far.