I have found that no matter what political circle an individual is running in, the Trump ballot situation seems to be a topic of discussion or debate.
In time, I will be posting articles on specific sections of the Constitution again, but for the first few posts back, I think it’s important to address a few salient and current topics. The Trump ballot situation seems to be one both parties are debating and discussing.
I’m not going to comment on the virtue or lack thereof of states choosing to remove Trump from the ballot, I’m merely going to address the Constitutionality of it and let you, my readers, wrestle that however you decide.
As many of you likely know, Maine and Colorado decided to remove Donald Trump from their primary election ballots. In Maine, the top election official chose to leave Trump off the primary ballot, while the Colorado Supreme Court decided to keep Trump off the election ballot in Colorado.
Perhaps the question most people are asking, whether in favor of this move or against this move is the following: can states Constitutionally do this?
The Supreme Court is going to rule on this very question, but that does not mean their answer is Constitutional or correct. It’s rather dangerous to federalism and the dynamic of state sovereignty vs federal sovereignty to throw all political or Constitutional questions to the Supreme Court—something you can read more about here.
I will give you a few of the arguments being used and conclude with my thoughts about the matter, based on my knowledge and understanding of the intention of the founders.
Why States Can’t Remove a Presidential Candidate
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States” Article II, Section 1 of the U.S. Constitution
This is the comprehensive list of qualifications that must be met for an individual to run for president of the United States. If you notice, there aren’t many. Race, gender, education, political experience, criminal record etc are not mentioned. This was because the founders wanted positions of government to be accessible and available to any citizen, unlike what they had experienced under the generational monarchy in Great Britain. There is no blood right or “heir” to the throne here in the United States. Anyone, as long as they are a certain age and are a citizen, can be president.
Thus, one could argue that states are violating this premise by preventing someone from running for office for what some would interpret as insurrection and others would argue was not insurrection. It’s a bit of a slippery slope. If states become privy to removing candidates they dislike from ballots, this could dramatically affect future elections and could be considered a desecration of the goals and hopes of the founders when they penned this portion of the Constitution.
Why States Can Remove a Presidential Candidate
Up until the 14th Amendment of the United States, states were not held accountable to the U.S. Constitution because that would have been considered federal overreach. If a state government did something questionable, the action was handled internally by the state’s courts and state constitution. The beauty of this was that it preserved federalism, the idea that the states had their realms of sovereignty immune to federal control, and the federal government had its realm of sovereignty immune to state control.
Federalism was a key component to the design of the American government because it gave individual agency to every state to push back against a bloated or abusive federal government but also equipped the federal government with enough power to prevent anarchy or chaos. The federal Constitution limited and defined federal power while the state constitutions limited and defined state power. Neither could violate the other.
The ugliness of this dynamic however was that some state governments began to use and abuse their power, harming their citizens and preventing their citizens the opportunity to push back at the state level.
The 14th Amendment changed all of this by opening the door to federal intervention in states. In sum, the 14th Amendment extended the federal Constitution to states in some circumstances, based upon the arbitrary will of the Supreme Court. In other words, sometimes the federal government can come into a state and nullify its laws or actions based on the federal Constitution if the Supreme Court rules that the state law or action violates the 14th Amendment.
While this is sometimes a good thing because it has allowed the federal government to right certain wrongs (i.e. institutional racism) that state governments used federalism to protect, it has also greatly skewed the delicate balance of power between states and the federal governmentin favor of the federal government. This skew is so much in favor of the federal government at this point, that there is very little federalism or state autonomy left. If a state government does something that a citizen does not like, instead of dealing with the issue within the state, the issue is immediately taken to the federal level, subsequently empowering the federal over the state yet again.
This shift in power from moderately powerful states balancing out a moderately powerful federal government to weak non-existent states acquiescing to a dominant and all-powerful federal government is anything but the design put in place by the founders under the original Constitution. There needs to be constant ambition counteracting ambition between the two to preserve liberty and prevent the potential of a singular source of arbitrary federal power.
The challenge? Human nature. States did engage in abusive and arbitrary behavior–and the solution was to ask for an arbitrary and potentially abusive federal government to step into action.
With this as the context, I’ll now address the Trump situation.
State governments were given almost complete, sovereign control over all elections. Article 1, Section 4 of the U.S. Constitution says:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
So, states control elections–at least the time, places, and manner of them–though this can be altered by Congress should Congress so choose.
Further, Section 3 of the 14th Amendment says,
“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.”
In other words, the two arguments in favor of the Constitutionality of a state’s removal of Trump from a ballot are the following:
- A state has discretion over elections and it would be a violation of federalism to say otherwise. Plus, if the federal governmentwere to get involved, it should be Congress, not the Supreme Court.
- Based on this logic, it’s within the state’s sovereign control to interpret Trump’s actions as insurrection or not and determine his eligibility accordingly.
I know the isn’t an answer. But I hope it’s given you some food for thought. Regardless of your feelings about Trump, both arguments–when not saturated with political and partisan undertones–have weight. And that’s kind of the point of this messy system of liberty. It’s supposed to be a constant push and pull, the ambition of the states butting heads with the ambition of the federal government. As soon as one takes too much power, the theoretical goal of the founders is in jeopardy. It’s for this reason that I’d find myself erring on the side of the state’s ability to make this decision unless Congress acts; otherwise, we’re again bowing to the arbitrary will of the far too powerful and overinflated Supreme Court.
The Liberty Belle