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If courts disqualify Donald Trump from state ballots, then democracy in America is lost.
In a recent essay, Indianapolis attorney Peter J. Rusthoven and adjunct law professor Wendell L. Willkie II called upon the U.S. Supreme Court to affirm a Colorado Supreme Court decision keeping Trump off the ballot.
They cited Section 3 of the 14th Amendment — which prohibits any “officer of the United States” who took an oath “to support the Constitution of the United States” from “hold[ing]” office if he “engaged in insurrection or rebellion.”
They failed, however, to address three critical issues: 1) whether Section 3 is self-executing such that courts can kick candidates off ballots without congressional action, 2) the meaning of “insurrection,” and 3) how the Colorado court’s decision harms states and their electorates.
We examined these issues in a 25-state amicus brief to the Supreme Court that Indiana co-led with West Virginia.
Let’s start with whether the insurrection clause is self-executing.
The 14th Amendment commits enforcement to Congress.
Section 5 stresses that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” And Section 3 specifies that “Congress … by a vote of two-third of each House” may “remove [the] disability” imposed by the insurrection clause.
So, it’s clear that enforcement is for Congress, not courts. In fact, Supreme Court Justice Salmon P. Chase said that very thing in a case decided a few months after Section 3 was adopted. And key figures in the Congress who drafted Section 3 agreed.
Now let’s consider the meaning of “insurrection.”
The Colorado court described an “insurrection” as any “concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power.”
That raises more questions than it answers. If two people link arms to block a poll worker from entering a ballot counting site, is that an insurrection? Or what about the protestors at President Trump’s inauguration who threw rocks and bottles at police, set fire to vehicles and smashed windows?
In truth, an insurrection is more serious than the Colorado court supposed. Throughout U.S. history, the term “insurrection” is usually coupled with words like “invasion” and “rebellion.” Article I of the Constitution says that Congress can use the militia to “suppress insurrection and repel invasions.”
The insurrections that would have been top of mind for the drafters of the 14th Amendment — such as the Civil War, Shay’s Rebellion and the Whiskey Rebellion — were all serious events featuring months or years of violence and attempts to install substitute governments.
This brings us to why states like Indiana should care about what happens in Colorado.
Here’s why: States have a strong interest in orderly, fair elections that give voters confidence in results.
The president is one of two elected officials chosen by every voter in America. If the Colorado court has its way, a voter in Colorado will have different presidential candidates from voters in Indiana. That isn’t right. It makes it harder for presidential candidates chosen by voters in Indiana to win — diluting those hard-working people’s votes.
Voters will lose confidence in fair and free elections if a few judges start deciding who can, and can’t, be the president. That will erode election integrity. The rule of law must prevail.•
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Todd Rokita, Indiana attorney general (adapted from remarks to the Heritage Foundation)
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