Efforts to block former President Donald Trump from being on the ballot next year have yet to score a major win in court. Nobody in power seems willing to decide whether the 14th Amendment’s insurrection clause disqualifies him from returning to the White House. Instead, judges and state officials have either pawned off that decision to someone else or determined that there will be some other, better time to make a judgment.
The result is a rapidly shrinking window for that decision to be made. And, based on the standard in a ruling issued in Michigan on Tuesday, we might not know the answer until after all the votes have been cast on Election Day next year. It might be after the presidential electors have met and submitted their ballots. It might come down to Congress on Jan. 6, 2025, to decide whether Trump is even eligible to become president.
Earlier this year, legal scholars, including prominent conservatives, came out in support of the idea that Trump is constitutionally ineligible for office and that it fell to election officials to enforce Section 3 of the 14th Amendment. (That section bars from federal and state office anyone who previously swore to support the Constitution but then had “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”) Since then, much of the energy from democracy activists and lawyers has focused on convincing secretaries of state of the argument, but they’ve met with either hesitancy or outright rejection from officials. At best, as in the case of Michigan’s Jocelyn Benson, there has been an openness to acting —?provided, that is, that a court rules whether Trump’s role in the Jan. 6, 2021, attack on the Capitol triggered the insurrection clause.
But one of the cases seeking such a ruling fell short on Tuesday. Judge James Robert Redford rightfully noted in his decision that Michigan state law doesn’t provide for the secretary of state to block a party from naming a primary candidate. The Minnesota Supreme Court reached a similar conclusion last week, finding that the question of whether Trump could appear on the general election ballot wasn’t “ripe” or “about to occur.”
The Minnesota court didn’t close the door on another challenge later. But as my colleague Jordan Rubin noted, Redford suggested that even the general election might not be enough to warrant the courts’ intervening. Instead, Redford said, the whole thing might be a “political question” best left to the people or their elected representatives. The judge further noted that the Constitution’s 12th and 20th Amendments directly deal with the election of the president and the vice president and that both of them give that role to Congress.
It’s worth pausing here to take a step back and note that technically it’s the Electoral College that votes for president. And though the drafters of the Constitution foresaw electors as independent, well-respected members of the community who would adjudicate the candidates’ qualifications, that’s not how it has played out. Each state generally assigns its electoral votes based on who won the popular vote, which is reflected in partisan slates of Electoral College members. Those slates then vote for their parties’ chosen candidates, and those votes are then transmitted to Congress to be counted.
Part of Trump’s scheme in 2020 was to have his slate of candidates in states he’d lost, like Georgia, declare that they were the real electors and have Republicans in Congress or Vice President Mike Pence use the confusion to declare Trump the winner. In response, Congress last year passed the Electoral Count Reform Act to forestall similar attempts to reverse future elections’ results. It made it clear that the vice president, who presides over the count, cannot be able to unilaterally decide whether a state’s electoral votes are valid. The law also narrowed the grounds for objecting to a state’s slate of electoral votes, including that the “vote of one or more electors has not been regularly given.”
That last bit — “not regularly given” —?is key for understanding how much disagreement remains over when and whether Trump could be disqualified. An order in an ongoing case about this issue in Colorado, which Redford cited, claimed that the phrasing means that “Congress has disavowed any ability it once had to consider objections other than the two listed above—including any regarding the constitutional qualifications of the President-elect.” But University of Iowa law professor Derek Muller noted in an article for the Georgia Law Review, written before the Electoral Count Act was amended, that the term could apply to a number of circumstances, including if “the elector cast a vote for a candidate ineligible to be elected to that office.”
The ECRA also raised the bar for objecting to electoral ballots. Instead of needing just one representative and one senator in each house, the law now requires one-fifth of each house to sign on, or 20 senators and 87 representatives. It’s not hard to imagine that many Democrats’ being willing to do so if we reach the end of 2024 without a firm answer one way or another. The House and the Senate would then split off to debate the question for two hours, then hold a vote. If a majority of both houses agreed to the objection, it would stand, and those votes would be set aside. That process would then, in theory, be repeated for however many states’ electors voted for Trump.
Bear in mind that this would be taking place in a world where Trump has won not only the GOP nomination but also the general election. While many of the pending cases may hope to reach the Supreme Court for a ruling ahead of the election, it’s possible that the conservative justices would also punt while citing the “political question” doctrine. If that’s the case, it’s difficult to see this as not being one of the biggest questions for members of Congress on the campaign trail leading up to 2024: “Will you vote to disqualify Donald Trump on Jan. 6?”
That’s exactly the kind of chaos that organizers hoped to prevent in trying to prevent Trump from being a candidate at all. Because, unlike his coup attempt, Congress in this case would be fulfilling its constitutional duty if it were to disqualify Trump when it counts electoral votes. It would be an act of delayed justice after the Senate acquitted him in his second impeachment trial and lost the accompanying chance to bar him from holding future office. At the time, the argument from Republicans like Sen. Mitch McConnell was that the courts would be the one to hold him accountable, a deeply ironic sentiment given the courts’ insistence that it’s a matter for Congress.
And yet, in a very real sense, it can’t be ignored that disqualifying Trump this way would be Congress’ doing exactly what Trump has, in his projection, accused Democrats of doing: trying to reverse the results of an election. The fact that Trump was most likely never eligible wouldn’t matter. The Republican Party, in allowing him to run and making him its nominee, will have known this was a possibility but will still support his cries that the whole system is rigged. And if we are forced to spend the next 14 months in suspense, it will only increase the chances that, when faced with this monumental decision, Congress will falter.