Section 3 Disqualification–and a No Labels Ticket

If the U.S. Supreme Court does not rule on the merits of Trump’s status under section 3 of the Fourteenth Amendment before the November 2024 general election, I think we need to start considering how the lingering disqualification issue might interact with the effect of a potential No Labels presidential candidacy. Assume Trump, Biden, and a No Labels candidate are on the ballot in November 2024 (and also possibly Cornel West as the Green Party candidate, but let’s leave him aside for this analysis as the basic point is the same either way).

Imagine that the national popular vote is fractured this way: Biden 48%, Trump 46%, No Labels 6%. Yet imagine Trump narrowly winning the Electoral College, 272-266 (with the No Label candidate receiving zero electoral votes). If you don’t think this kind of outcome is possible, recall both the 2016 result as well as the one back in 1888. It’s also possible that the same Electoral College result could be paired with national popular vote totals more like this: Biden 45%, Trump 42%, No Labels 13%. (This would be a level of third-party support similar to 1968, but with the added twist of a divergence between Electoral College and national popular vote outcomes.)

The lower Trump’s national popular vote total, and especially if it’s lower than Biden’s, the greater would be the political incentive for Democrats in Congress to challenge Trump’s Electoral College victory on the ground that Trump is disqualified under section 3 of the Fourteenth Amendment. Their challenge wouldn’t (or shouldn’t) result in Biden’s election. Pursuant to the Twentieth Amendment, the disqualification of Trump would (or should) cause his running mate (whoever that might be) to become Acting President. It nonetheless would be a huge constitutional crisis for Congress to deprive Trump of the presidency after winning the Electoral College. Yet the larger the gap between the Electoral College outcome and the (legally irrelevant but still politically significant) national popular vote, the more likely Democrats would try to block Trump’s return to the presidency.

Contemplating the chances of a scenario like this reinforces my basic belief that it would be far preferable if procedurally there is a way for the U.S. Supreme Court to rule definitively one way or the other on the merits of Trump’s status under section 3 of the Fourteenth Amendment before ballots are cast in November of 2024.

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