The Limits of the 14th Amendment, and the Need to Get The Damn Vote Out America

Knew this was coming but it still hurts. The Supreme Court ruled today that Colorado - or any other state - doesn't have the standing to disqualify donald trump from the 2024 election ballots over his act of insurrection (via Amy Howe at SCOTUSBlog): 

The Supreme Court on Monday ruled that states cannot disqualify former President Donald Trump from the ballot for his role in the Jan. 6, 2021, attacks on the U.S. Capitol. In an unsigned opinion, a majority of the justices held that only Congress – and not the states – can enforce Section 3 of the 14th Amendment, which was enacted in the wake of the Civil War to disqualify individuals from holding office who had previously served in the federal or state government before the war but then supported the Confederacy, against candidates for federal offices.  

All nine justices agreed that Colorado cannot remove Trump from the ballot. But four justices – Justice Amy Coney Barrett in a separate opinion and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson in a joint opinion – argued that their colleagues should have stopped there and not decided anything more...

In a 13-page unsigned opinion released shortly after 10 a.m., the justices reversed the state supreme court’s decision. The justices explained that the 14th Amendment was intended to expand the federal government’s power at the states’ expense. And in particular, they noted, Section 3 was designed to “help ensure an enduring Union by preventing former Confederates from returning to power in the aftermath of the Civil War.”

But before disqualifying someone under Section 3, the justices observed, there must be a determination that the provision actually applies to that person. And Section 5 of the 14th Amendment gives the power to make that determination to Congress, by authorizing it to pass “appropriate legislation” to “enforce” the 14th Amendment. Nothing in the 14th Amendment, the court stressed, gives states the power to enforce Section 3 against candidates for federal office, nor was there any history of states doing so in the years after the amendment was ratified...

In their six-page joint opinion, Sotomayor, Kagan, and Jackson agreed with the result that the per curiam opinion reached – that Colorado cannot disqualify Trump – but not its reasoning. The three justices acknowledged that permitting Colorado to remove Trump from the ballot “would … create a chaotic state-by-state patchwork.”

But the majority should not, in their view, have gone on to decide who can enforce Section 3 and how. Nothing in Section 3 indicates that it must be enforced through legislation enacted by Congress pursuant to Section 5, they contended. And by resolving “many unsettled questions about Section 3,” the three justices complained, “the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President...”

To a layman, it seems confusing how the Supreme Court is arguing that Congress has to set the law and enforcement of Section 3 through Section 5 of the 14th Amendment, but then arguing over how that has to work in the first place. To someone like me, it's as though the conservative majority was simply trying to keep it safe for trump to stay on the ballot now and then argue over semantics later.

We need to recognize several points. The Court did not even address the underlying finding of the Colorado courts that trump engaged in insurrection over the January 6th riots and its planning, with the implication that those courts' findings proved trump did. The Court may have ruled in favor of saying Congress has to oversee enforcement of Section 3 of the 14th, but they are divided on how that could get implemented. SCOTUS may have declared Congress has to handle this mess, but they're doing so knowing full well our modern Congress is a hyper-partisan dysfunctional mess, meaning this will not get resolved anytime soon anyway.

There was a hope that disqualifying trump through the 14th Amendment would end the high risk of trump - facing criminal charges at the state and federal level (depending on how fast this Supreme Court hears trump's Absolute Immunity claim), and threatening to unleash plans to behave worse on immigration and foreign policy than he did between 2017 to 2020 - getting anywhere NEAR the White House again. Now that hope is clearly gone.

We Americans now have to hope that the 81.2 million voters who showed up in November 2020 for Biden/Harris will return to vote Biden back to a second term as President; and that trump - whose support is not as strong in the primaries as an 'incumbent' candidate should have - loses a significant chunk of the 74.2 million who showed up for him so there's no fudging or denying Biden's Electoral wins.

For all the potential schemes that trump and his Republican allies have for this election cycle - the disinformation, the gerrymandering, the voter suppression - all of that can be defeated by honest-to-God voter turnout on a scale they can't suppress.

Democrats, Independent voters who oppose the Far Right's Culture War, even disgruntled Republicans tired of trump's rampages: ALL of us need to show up at the ballot box across all 50 states (and DC) and give all support to Biden and the Democratic ticket down the line (Senate, House, state level elections, state referenda, all of that).

GET THE DAMN VOTE OUT, AMERICA.

And for the LOVE OF GOD AND COUNTRY, do NOT vote trump at all.