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SCOTUS should uphold the Constitution by deciding the Colorado appeal on the law

January 13, 2024

The recent decisions in Colorado and Maine finding Donald Trump ineligible to run for the presidency have spawned a host of calls for the U.S. Supreme Court to intervene. Rather than offer serious legal arguments, most opponents contend the decisions are anti-democratic and will have terrible consequences, such as by provoking red states to remove President Joe Biden from their ballots. These are bad arguments.

All democracies have rules that establish eligibility requirements for persons who seek elected offices. These requirements limit voters’ choices because persons who do not meet them cannot run. Thus, even though tens millions of Americans might like to elect Barack Obama to another term as President, they cannot because the 22nd Amendment disqualifies him, as he has already held the office twice.

Millions of Americans might also want to vote for Arnold Schwarzenegger or Jennifer Granholm, respectively the former Governors of California and Michigan. But both are ineligible too because the Constitution requires Presidents to be natural-born citizens and they are immigrants.

States’ election laws also limit voters’ choices. Maine disqualified Chris Christie from its GOP primary because his campaign collected fewer signatures than the state’s law requires.

The 14th Amendment provision that has so far kept Trump off the ballots in Colorado and Maine is another eligibility requirement, and an exceedingly important one. It helps preserve the rule of law by preventing traitors from using the powers of high office to destroy the country.

Millions of voters support Trump. But so what? If widespread support provides no basis for ignoring the 22nd Amendment in favor of Obama or Article II’s native birth requirement in favor of Schwarzenegger or Granholm, how can it be a reason for ignoring the 14th Amendment in favor of Trump? We should be more concerned about preventing traitors from becoming president than worrying about third-termers or naturalized citizens who never sought to prevent the peaceful transfer of power.

Trump isn’t special. He must meet the same eligibility requirements as all other candidates. If he can’t because he fomented an insurrection—as in my opinion and that of the Colorado Supreme Court, he clearly did—then to uphold the Constitution he must be excluded from the ballot.

Commentators, including some who agree that Trump fomented an insurrection, nevertheless argue the U.S. Supreme Court should let him run to avoid a repeat of Bush v. Gore, the lawsuit in which the Court decided the 2000 election. But failing to enforce the Constitution would send the terrible message that threats of violence work. The country owes an enormous debt to the many lower court jurists who honored their oaths to the Constitution despite Trump supporters’ vicious attempts at intimidation. The Supreme Court should show as much courage.

Moreover, the contrast with Bush v. Gore – a case that critics see as a purely partisan decision by Republican appointees to hand the 2000 presidential election to the Republican – could hardly be starker. A decision affirming the Colorado Supreme Court would have to be bipartisan because, to uphold Trump’s disqualification, at least two Republican-appointed justices will have to cross party lines.

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The appeal of the Colorado case doesn’t ask the Court to pick the winner of an election either. If the court agrees that Trump cannot run, then Republicans will nominate someone else who may well win against a weak incumbent.

Finally, while Bush v. Gore divided the country, it still sent the crucial message that the U.S. resolves election disputes peaceably in courts of law and lives with the results. We don’t settle election disputes in the streets as partisans in some countries do. The willingness of honest courts to decide controversial cases on the law and facts is one of the hallmarks that distinguishes a mature, law-abiding democracy from a fragile banana republic.

That is the issue at stake in these cases. The appeal of the Colorado decision is the Supreme Court’s opportunity to tell us whether the U.S. is a mature democracy where all candidates for elected office are equal before the law, or a banana republic where partisan judges exempt their favored candidates from inconvenient constitutional requirements.

Charles Silver is an adjunct scholar at the Cato Institute and a professor at the University of Texas at Austin School of Law.

Orange County Register

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SCOTUS should uphold the Constitution by deciding the Colorado appeal on the law

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