I have written this piece for The Atlantic. It begins:
There’s an old saying that sometimes it is more important for the law to be certain than to be right. Certainty allows people to plan their actions knowing what the rules are going to be.
Nowhere is this principle more urgent than when it comes to the question of whether Donald Trump’s efforts to subvert the 2020 election results have disqualified him from becoming president again. As cases raising the question have begun working their way through the courts in Colorado, Minnesota, and elsewhere, the country needs the Supreme Court to fully resolve the issue as soon as possible….
A number of legal doctrines could lead courts to kick this issue down the road for some time. Maybe the provision applies not to primaries, but only to candidates in a general election. Maybe voters don’t have standing to sue, because they can’t show a particularized injury. Maybe this is a political question to be decided by the political branches, such as Congress, rather than by the judiciary.
But courts should not dally, because judicial delay could result in disaster. Imagine this scenario: Election officials and courts take different positions on whether Trump’s name can appear on the ballot in 2024. The Supreme Court refuses to get involved, citing one of these doctrines for avoiding assessing the case’s merits. Trump appears to win in the Electoral College while losing the popular vote. Democrats control Congress, and when January 6, 2025, arrives and it is time to certify the vote, Democrats say that Trump is ineligible to hold office, and he cannot serve.
As I and my co-authors argue in our report on how to have a fair and legitimate election in 2024, such a scenario raises the possibility of major postelection unrest. The country would have one political party disqualifying the candidate of the other party from serving—after that candidate has apparently won the results of a fair election….
How the Supreme Court would—or should—resolve the question of Trump’s disqualification on the merits is far from clear. There is no question that Trump tried to subvert the results of the 2020 election, using pressure, lies, and even the prospect for violence to overturn Joe Biden’s victory. Trump so far has faced no accountability for his actions: The Senate did not muster the two-thirds vote in 2021 to convict him after his second impeachment, a step that could have led to his disqualification under Congress’s impeachment-related powers. The federal and Georgia cases against Trump for his alleged election interference may yet go to trial, but whether verdicts will ever be reached is far from certain. In any event, even a guilty verdict would not disqualify Trump. If there is going to be any accountability for Trump’s actions in 2020, it might have to come from this disqualification provision. A reading of the Fourteenth Amendment in this way helps protect our democracy.
But serious legal questions continue to dog any use of Section 3 of the Fourteenth Amendment. My general view is that to avoid the overall criminalization of politics, reserve prosecuting politicians for instances when both the law and the facts are clear; marginal cases are best left to other remedies. Disqualification, of course, is not a criminal procedure, but borrowing this principle from the criminal context recommends caution here too. In close cases, the voters should get to decide at the ballot box.