If SCOTUS follows the Constitution, Trump must be booted from the ballot

The language of both the Founders in granting states the authority over the managing of elections, and Congress and the states in 1868 when the 14th Amendment was put in place, make it very clear that Donald Trump did incite insurrection on Jan. 6, 2021 and he continues to do so today in his public comments

IF THE U.S. Supreme Court today remains a body that will rule solely on the language of the Constitution and not on political considerations tracing back to the disgraced former President Donald J. Trump it will support state efforts to keep him off state ballots in 2024 as a result of his actions on or around Jan. 6, 2021.

Such a ruling by the state of Colorado is going to be heard by the Supreme Court and its ruling will determine if, in fact, Section 3 of the U.S. Constitution has any standing or is merely a waste of words on parchment.

Section 3 states that “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. But Congress may by a vote of two-thirds of each House, remove such disability.”

What constitutes “insurrection” and “engaging?”

According to Federal code insurrection is defined as “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

Going further, what is “rebellion?

“Rebellion or insurrection is a federal offense that criminalizes inciting, engaging in, or giving aid and comfort to any rebellion or insurrection against the authority of the United States or its laws.”

When it comes to “engaging” it is clear that “given aid or comfort to the enemies thereof” was intended to be broad and would include the actions leading up to, and following, Jan. 6 2021 by Donald J. Trump. Even today Trump calls those who stormed the Capitol “great, great patriots” and the day itself a day “filled with love.” He also refers to those convicted and jailed for following his urgings “hostages.”

DECIDING THIS CASE should not be difficult for a Supreme Court, even our current one which has plumbed new depths in corruption and political interference. All it has to do is go back to the Founders’ language concerning who has jurisdiction over elections then determine if the Colorado Trump ban is connected to Section 3 of the 14th Amendment.

The Founders gave over management of elections to the states. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing (sic) Senators.”

A key word in that language is “manner.” That would seem, logically and legally, to include management of the ballot, not in a political sense but in a purely legal one.

When we tie state authority over elections to Section 3 of the 14th Amendment it’s important to understand what Section 3 is. It came in direct response, in 1868, to the horrors of the Civil War. Congress, mostly non-southern representatives, and senators did not want to see former Confederates come back into power. It is critical to note the exclusion was not aimed at those who physically took the battlefield.

Congress was concerned about those who fomented the insurrection that became the Civil War. Jefferson Davis, president of the Confederacy, did not take to the battlefield. But he and other southern firebrands certainly created the conditions that led to succession and the attack on Fort Sumter.

That is why so many legal scholars have said Trump’s language and overt support for what happened on Jan. 6 (and his ignoring of it for several hours) qualifies as participation in an insurrection even though he never joined this throng on the march to the Capitol building.

It is interesting to see Republicans, who constantly claim without any credibility, that they are for states’ rights, try to say Section 3, 14th, does not apply. If you simply link the Constitutional language on a state’s authority over elections and Section 3 it clearly does.

RETIRED FEDERAL JUDGE J. Michael Luttig, a card-carrying staunch conservative, has spoken firmly and at length about this issue. He speaks not from a political point of view but a Constitutional one.

In one interview he clearly explained the connection..

“It (Section 3) is more than just a proscription and disqualification for anti-democratic conduct by an individual, but, in this circumstance, it is that and it would apply in this instance to disqualify the former president from holding the presidency again, because of his effort, plan and attempt to overturn the 2020 presidential election, knowing that he had lost that election to then-candidate Joe Biden.

“This is very, very important: Section 3 disqualifies one who has engaged in insurrection or rebellion against the Constitution of the United States, not an insurrection or rebellion against the United States, or the authority of the United States. And so that’s the issue in Colorado and in Minnesota (later Maine) and in the other states that are currently involved in the constitutional process to determine whether the former president is disqualified.”

If this Supreme Court rules that states cannot use Section 3 of the 14th as legal grounds for keeping someone off the ballot, then will anyone ever be kept off a ballot using the language of Section 3? If what Donald Trump did before, during and after Jan. 6 (and continuing to this day when he persists in calling it a “day of love” and promises to pardon all convicted for the violence) does not make him ineligible then Section 3 never will be used.

If you listen to or read Trump’s comments in recent weeks it is apparent that if elected he will continue the insurrection, calling for “revenge and retribution” in ways that would seem to be outside of legal and democratic bounds. Judge Luttig succinctly points out what would happen if Trump ever returns to power:

“I’ve said publicly, many times, that the former president and his Republican allies instigated a war on American democracy on Jan. 6. And that in so doing, they have corrupted American democracy and our elections, to the extent that, today, millions and millions of Americans no longer have faith and confidence in American democracy and in our elections.

‘It’s evident that the former president and his allies are going to prosecute that war against democracy to its catastrophic end, and if the former president were to be elected, again, to the office of the president, then I believe that that would be regrettable, for American democracy and the rule of law.”

Looking at the language of our Founders and Congress and the states which ratified the 14thAmendment, there is only one legal conclusion to be reached. Donald Trump never again should be on any ballot. He should never again be allowed to lead the nation he despises and to continue his assault on our democracy, consigning future generations to a darkness once unimaginable in the United States.

Rich Heiland, has been a reporter, editor, publisher/general manager at daily papers in Texas, Pennsylvania, Illinois, Ohio and New Hampshire. He was part of a Pulitzer Prize-winning team at the Xenia Daily (OH) Daily Gazette, a National Newspaper Association Columnist of the Year, and a recipient of the Molly Ivins First Amendment Award from the Walker County (TX) Democrat Club. He taught journalism at Western Illinois University and leadership and community development at Woodbury College in Vermont.  Since 1995 he has operated an international consulting, public speaking and training business specializing in customer service, general management, leadership and staff development with major corporations, organizations, and government. Semi-retired, he lives with his wife in West Chester, PA. He can be reached at heilandrich1@gmail.com.