Excluding Trump from the Ballot Is No Cause for Celebration

Maine’s secretary of state joined Colorado’s Supreme Court in excluding Trump from the state primary ballot. This is a dangerous development in the fight against Trumpism.

It does not look good for Donald Trump – at least, not if you believe the headlines. Maine is now the second state after Colorado to bar the front-runner for the Republican presidential nomination from appearing on its primary ballot. If Maine’s decision is upheld, it will have serious consequences for the 77-year-old candidate. Unlike in Colorado, where Biden won all the electoral college votes, Trump won one of Maine’s four electoral votes in 2020. If affirmed, Maine’s decision could theoretically mean that Trump would be one electoral vote down in the final count.

But that scenario is a long way off. Indeed, it is unlikely ever to come to pass. Accordingly, it is advisable to exercise caution when assessing the latest decision. In any event, there’s no reason to celebrate.

Much as you might wish that this democracy-loathing right-wing populist would disappear from the U.S. political stage, barring him from running for election on the basis of a hitherto untested constitutional amendment dating back to 1868 is legally controversial, politically extremely sensitive, and for the moment, practically unavailing. While the section in question indeed bars anyone who participated in an insurrection from holding high office, it is nevertheless unclear whether this also applies to the president and unclear as to who makes the decision.* The Colorado Supreme Court and Maine’s secretary of state have both disqualified Trump, while Minnesota and Michigan’s high courts and California’s secretary of state rejected similar lawsuits and challenges in relation to the same set of facts.

Incendiary Politics

Thus it is clear that the issue will ultimately need to be settled in the U.S. Supreme Court, the country’s highest court. The state decisions have been stayed pending appeals, and Trump can continue campaigning all over the country. However, the Supreme Court will be asked to decide whether to take one of the two favorites out of the race during this most heated stretch of the presidential election race. That would be an explosive decision even in a stable democracy. In the extremely polarized U.S. social climate, Trump’s disqualification by the highest court in the land would be tantamount to a political atomic bomb. It at least begs the question whether this Supreme Court, which has a solidly conservative majority although it is struggling with a dramatically diminished reputation, would have the courage to do this. The justices might be more inclined to defer any decision until after the election.

Such legal moves carry huge political risk. Trump is unscrupulous and is facing trial on numerous criminal charges. He has repeatedly lied, committed fraud, slandered people and instigated an insurrection on Jan. 6, 2021. By rights, he belongs behind bars, and ought never be allowed to move back into the White House. Yet while the criminal charges against Trump will be decided in the courts where four prosecutions are underway, Congress could and should ban him from political office. However, Congress declined to do so in the wake of two impeachment proceedings.

Martyr of the ‘Deep State’

If the back door mechanism of an obscure constitutional provision prevented Trump from running literally at the last minute, it would boost the conspiracy theories of his supporters, who already see their idol as a victim of political intrigue. As paradoxical as it may sound, a historic, unprecedented disqualification from the race is probably the best thing that could possibly happen to Trump. It would turn him into a martyr of the “deep state” once and for all, whip up his unconditionally loyal base to the brink of civil war, and quite conceivably sweep a Trump puppet into the White House in his place.

You cannot use a court ruling to deal with the nationalist, anti-democratic, and now openly far-right movement Trump leads. You have to confront them, challenge their opportunistic outriders in Congress, and pressure their donors. The media must also take responsibility. They must finally stop portraying Trump as a shrill but entertaining freak-show clown, and call him what he is: a dangerous demagogue, pathological narcissist, and would-be dictator with a predilection for fascist thinking. This kind of concerted resistance is both vital and urgent. But in the end, you will only defeat Trump and his cult politically in one place: the ballot box.

*Editor’s note: The author is referring to Section 3 of the 14th Amendment, which provides in part: “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.”

**Editor’s note: Trump has been indicted on various criminal charges, but has not yet been convicted.