The Wall Street Journal (WSJ) Editorial Board has come out in opposition to the growing Never Trump legal theory that secretaries of state and other state officials could block former President Donald Trump from their states’ presidential ballots using Section 3 of the Fourteenth Amendment.
At the crux of the anti-Trump legal scholars’ argument is their claim that Trump partook in an insurrection on January 6, 2021. Section 3 of the Fourteenth Amendment outlines that one who incites an insurrection is barred from holding office, though there is debate about whether the statute applies to the president and vice president, as Breitbart News Senior Editor Joel Pollak and the Washington Examiner’s Byron York have pointed out.
The Wall Street Journal describes the events of January 6 as a “riot” and an “obstruction of a federal proceeding” and noted the “1970s were rife” with political riots, “including bombings of government buildings.” However, January 6 did not rise to an insurrection or a rebellion in the WSJ board’s view, and a major weakness in the argument is that none of the federal charges levied against Trump allege an insurrection or seditious conspiracy.
“Does anyone think special prosecutor Jack Smith would have refrained from charging that crime if he believed he could prove it in court?” The board wondered. “Instead he has charged a conspiracy to overturn the election, but that is not a rebellion.”
While New Hampshire Secretary of State David Scanlan (R) and Michigan Secretary of State Jocelyn Benson (D) have indicated they are weighing arguments Trump should be disqualified, Washington Post columnist Jennifer Rubin called on other secretaries of state to do the same last week:
The first step must be a recognition that the 14th Amendment is relevant and demands fidelity from all officials who take an oath to defend the Constitution. As Luttig and Tribe wrote, “Section 3 is no anachronism or relic from the past; rather, it applies with the same force and effect today as it did the day it was ratified — as does every other provision, clause, and word of the Constitution that has not been repealed or revised by amendment.”
Now, secretaries of state and other officials must grapple with how to make the determination. Does state law require they obtain a ruling from the state attorney general or other legal official? Do they conduct open hearings to provide transparency and educate voters? There are no easy answers because we have never witnessed the accused instigator of an attempted insurrection run for president. And though Trump is not yet the nominee, it would be reckless not to prepare for the strong likelihood that Republican primary voters will nominate their cult leader.
Although Benson acknowledged listening to arguments for using the Fourteenth Amendment while appearing on MSNBC’s Deadline: White House in August, she brought up concerns surrounding due process, considering Trump has not been convicted of a crime.
“If we’re not going to predicate this on conviction under the law, then what and how do we ensure due process? How do we define insurrection or rebellion? Who makes that determination?” asked Benson. She added state officials must be “very careful in making decisions not from a political standpoint but from a legal standpoint.”
The Journal’s editorial board emphasized that removing Trump without a conviction would violate his rights to due process and open the door to allegations against those who take him off the ballot of a conspiracy against rights:
This would seem to violate the due-process protections that are explicit elsewhere in the Constitution. Removing Mr. Trump by fiat would also deny voters the constitutional right to vote for the candidate of their choice. See Reynolds v. Sims (1964), among other precedents. This is precisely the right that Mr. Smith, the special prosecutor, accuses Mr. Trump of violating. Democrats would arguably be committing the same offense.
Moreover, some courts have ruled that this Disqualifications Clause of the Fourteenth Amendment is not self-executing, meaning that Congress must enact a law setting up the process to disqualify citizens under Section 3. Congress has never passed such a law.
Election law expert Hans von Spakovsky at the Heritage Foundation, who formerly served as a member of the Federal Elections Commission, and before that as a lawyer in the Department of Justice Civil Rights Division, raises yet another objection. He explains that Congress passed two amnesty acts for citizens who would have been disqualified under Section 3, one in 1872 and another broader amnesty in 1898, and argues that these two federal laws have completely nullified what would otherwise be the force of the Disqualifications Clause.
Removing Trump from the ballot would further fan the flames of political divide among Americans, in the Journal’s view. A CNN poll last month found that 69 percent of Republicans do not think Biden legitimately won the 2020 election, and removing the leading Republican presidential candidate would likely further tarnish GOP voters’ faith in the electoral system.