To Remove A Candidate From The Ballot: Part II

In my last post of 2023, I laid out the case as to why Colorado and Maine removing Donald Trump from their primary presidential ballots was a mistake due to the evidence and logic used.

Now I will discuss why removing Trump bothers me so much.

It comes down to precedent. In many ways, the legal and political worlds depend on precedents. We don’t want to deviate too much from them because that could destabilize the system. At the same time, we want to move away from unfairness. For example, the constitutional Amendments passed after the Civil War which reversed generations of unacceptable treatment for Africa-Americans.

I argue that removing Trump would fall into the first category and destabilize our politics. A large part of the Colorado and Maine decisions is the 14 Amendment’s insurrection clause, which was made in the aftermath of the Civil War to prevent former Confederate generals and commanders positions in the new government.

The clause has been rarely used, so there are few precedents associated with it. Its language is incredibly vague, stating that no political office holder “shall have engaged in insurrection or rebellion of the state, or given aid or comfort to the enemies thereof.”

The clause does not define what insurrection, rebellion, aid or comfort are. Granted, we have other laws and resources to define those concepts. But without many precedents with the insurrection clause, individuals may choose differing definitions. What constitutes insurrection and aiding insurrectionists could be quite different from state to state.

Furthermore, for every political action there is an equal and opposite reaction. Trumpers, Republicans and conservatives are outraged by Trump’s removal from the ballot. Bolstering their argument is the fact that both Colorado and Maine are very left states. In a polarized society, they will conclude that these removals are politically motivated and understandably so.

The Right will start to find ways to remove Democrats and liberals from ballots. Consider the intense controversy surrounding some of the Black Lives Matter protests or general civil disobedience. Pro athletes kneeling for the national anthem aroused intense passions. Whether or not protests and events are violent, a political opponent could claim they were “insurrections” and use the precedent established by Maine and Colorado in the 2024 presidential election to remove them from an election.

The more I reflect, I find that the “aid and comfort” component of the insurrection clause to be more troubling. Accusing someone directly of insurrection is more potent, but also more likely to be challenged or rejected. Claiming that a politician aided or comforted insurrectionists is a more subtle, sinister method because a wider gamut of actions can be thrown under it.

All I ask is that everyone think of the consequences of removing Trump from the ballot. You may not care about him at all, and believe that he’s getting comeuppance for his irresponsible behavior. I sympathize with this opinion.

Yet how will you feel when politicians and lawmakers come for your team?

By then, it may too late. “Insurrection” may become a charge as meaningless as impeachment in a generation or two.

Let’s do our utmost to avoid that outcome.