Much, probably too much, has been written about whether Donald Trump should be kept off the primary and/or November 2024 ballots because, under Section 3 of the 14th Amendment, he is not eligible to hold governmental office given his involvement with -- indeed, instigation of -- the January 6, 2021, insurrection.
First, the Post's concern about whether there is sufficient adjudication of Trump’s status as an insurrectionist to be within the Section 3 prohibition is satisfied by the February 2021 Senate vote at the end of the impeachment trial, in which the Senators voted to convict by a 57-43 margin. While not enough to reach the 2/3 threshold to convict, it certainly is sufficient to establish Trump’s current status.
Second, Section 3 does not, by its terms, bar insurrectionists from being on ballots. Rather, it bars insurrectionists who have “previously taken an oath [of office] to support the Constitution of the United States” from “hold[ing] any, civil or military, office under the United States.” This is significant because Section 3 also provides that Congress, by a 2/3 vote in each house, may remove an insurrectionist’s disability. So Congress could act to permit an elected insurrectionist to take office.
But anyone voting for Trump should be aware that the Constitution bars him from taking office unless Congress, by overwhelming votes, waives the disability. Absent such a waiver, the Constitution counsels that the Electoral College not elect Trump, even if his pledged electors constituted a majority. Presumably, Trump electors could choose to vote for Trump’s running mate. But what if the majority of electors choose Trump anyway -- probably in the hope that somehow 2/3 of each house of Congress would clear the path for Trump before Inauguration Day. If that did not happen by the appointed day in January for the Electoral Votes to be counted in the Senate, Vice President Harris, following the Constitution (which supersedes any conflicting requirement in the Electoral Count Act), could refuse to accept those ballots because (in the absence of a waiver) Trump would be ineligible to hold office.
If, as a result of the disability, there was no Electoral College majority, the Constitution’s 12th Amendment mandates that the House of Representatives choose among the top three electoral vote getters, with each state delegation having one vote. But absent a 2/3 vote in both houses to remove Trump’s disability, Trump could not be one of those candidates because he could not hold office. If the House still elected Trump, it would be unconstitutional for him to take office. Or if a Republican elector abandoned Trump and voted for the VP nominee, or someone else, that person could be on the House ballot. And there is no guaranty that any eligible candidate would have a majority of the state delegations, since some states might be evenly divided between Republicans and Democrats.
So what would happen next if no eligible candidate secured a majority of state delegations? Assuming Vice President Harris accepted the Electoral College votes for Trump’s running mate, then that person would be elected Vice President. If she could not or would not accept those votes because they were tied to Trump, then, under the 12th Amendment, the Senate would vote on the top two electoral vote getters. But if there were no accepted electoral votes for the Republican Vice Presidential nominee, then the only candidate would be the Democratic VP nominee. And even if the Republican VP nominee were deemed eligible to be on the Senate ballot (that could happen if a Republican elector voted for someone other than Trump) the decision in the Senate would turn on who who controlled the Senate after the 2024 election. That could easily be the Democrat. Or no one if there was a 50-50 split (with no Vice President to cast the tie-splitting vote -- unless the vote were taken before the end of Vice President Harris' term, which expires on January 20, 2025).
In any event, under Section 3 of the 20th Amendment, a new Vice President would become acting President “until a President shall have qualified.” Trump would not be "qualified" unless 2/3 of the House and 2/3 of the Senate removed his disability or the U.S. Supreme Court ruled that, somehow, he was not part of the January 2021 Insurrection, notwithstanding the Senate’s 57-43 vote for conviction following Trump’s second impeachment. Just imagine the chaos if, for example, a House with a plurality -- but not a majority -- of state delegations in Republican hands were unable to "elect" Trump, and the Democratic Vice President (whether Harris or someone else) were acting President, or there is no Vice President at all because there is a 50-50 split in the Senate after the 2024 election?
The 20th Amendment states that "Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified." I suspect, but do not know, that the only present law that would be applicable would be the Presidential Succession Act, which would mean that the Speaker of the House would be acting President. Of course, as close as the House margin is now, we have no idea who the Speaker would be after the 2024 elections: Hakim Jeffries? Kevin McCarthy? Or a Republican-controlled House could try to make Trump the Speaker (the Speaker need not be a member of the House) -- but Trump still would not be qualified due to Section 3 of the 14th Amendment. Or maybe it would be the ultimate Steve Bannon coup?
This situation would be even more fraught if the Democrat, as in 2020, won an overwhelming majority of the popular vote, but, as in 2016, not a majority of the Electoral votes.
Best way to avoid this mess created by Donald Trump’s insurrectionist behavior? Overwhelmingly elect the Democratic ticket in November 2024.
PS: There was a time when winning the popular vote was a bedrock of governmental legitimacy. In the long or even medium run, we need to restore that basis for legitimacy. See https://davidfishback.blogspot.com/2022/10/the-republic-we-may-not-be-able-to-keep.html
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