The Colorado Supreme Court’s holding disqualifying Donald Trump from the ballot, and the similar ruling by Maine’s secretary of state, have been widely denounced by various members of the pundit class as undemocratic. There are plenty of grounds for worry about these decisions, but this can’t be one of them. These critics’ fears about what’s at stake as far as our democracy is concerned have been badly misplaced: It is only because of democracy-thwarting provisions of the Constitution that Trump has any hope of becoming president again.
These decisions have been criticized, on grounds of democracy, even by thoughtful writers who regard Trump as a threat to America. They make what may be called the Argument From Democracy: Trump must be stopped, but the appropriate—indeed, the optimal—way for that to happen is for the voters themselves to consider and reject him. A “Get Out of a Second Trump Term Free” card from the judiciary simply won’t do. Even The New York Times’ generally reliable Charlie Savage writes that the ruling “pits one fundamental value against another: giving voters in a democracy the right to pick their leaders versus ensuring that no one is above the law.” Kurt Lash likewise says, “Let the people make their own decision about Donald Trump.”
They don’t seem to notice that the people have already rendered their own decision, precisely by the gold-standard means they all suggest. They rejected Trump twice. In 2016, Hillary Clinton got nearly three million more votes than he did. Four years later, Joe Biden beat him by more than seven million votes.
It’s only because of the Electoral College, an unpopular constitutional relic, that the American people do not get to make their own decision, by majority vote. If they did, then a party as extreme as today’s Republicans could never hope to secure the presidency, or for that matter the Senate. They are only as potent a force—and an undemocratic force at that—because the Electoral College magnifies the power of sparsely populated rural states. If, in 2020, Trump had won 45,000 additional votes in Arizona, Georgia, and Wisconsin, he would be president today.
A similar scenario in 2024 is his most promising path back to the White House. What those making the Argument From Democracy have glossed over, in fact, is that it is exceedingly likely that a majority of Americans will reject Trump for a third time. It is, however, quite possible that they will be thwarted again by the Electoral College. If that is Trump’s path to the presidency—and it is probably his only possible path—it would be yet another defeat for democracy.
I express no view here about the legal merits of the decisions handed down by Colorado or Maine—though The New Republic’s Matt Ford has argued that the Colorado decision was sound. I will simply note that the Argument From Democracy has nothing to do with those legal merits. It is really just an objection to the provision in the Fourteenth Amendment that bars insurrectionists from office. But if we are going to allow our Constitution to organize our politics in undemocratic ways, then the same reasons apply even when the undemocratic ways are less familiar.
Were Trump to be excluded from a ballot, Trump voters would of course claim that they have been cheated. But they will claim that anyway, in any possible scenario in which Trump does not win reelection. He will lie about the outcome, and they will believe him. We have already run this experiment. Almost 70 percent of Republicans think the 2020 election was stolen by Joe Biden, even though that claim was rejected by every judge it came before, including Trump’s own appointees. These voters are insulated from reality here, as with climate change, vaccination, and many other issues.
There are good reasons to worry about the consequences of Trump’s disqualification from the ballot. It’s hard to predict what might happen if the Supreme Court upholds it. Plausible, scary possibilities abound. Some states would doubtless defy it and nominate Trump anyway. Some Trump supporters would respond the way they did on January 6.
But here, we are no longer talking about democracy or law. The problem of how to manage Trump’s supporters is like the problem of how to prevent China from invading Taiwan, or to keep Hamas from again committing mass murder and rape. Where the rule of law is insecure, the question of how to handle violent, unscrupulous bullies is a prudential one. Of course, the most dangerous of those bullies is Trump himself. There is no rule book in such matters. Anyone who has no doubts about how to handle them misunderstands the chaotic contingency of human affairs.
At the level of principle, however, the question of whether democracy should be checked by the Fourteenth Amendment’s disqualification clause is just like the question of whether, because of the Electoral College, the American people should be ruled by a president that most of them voted against. In each case, the rule of law depends on accepting the imperfect system of law we have inherited. The disqualification clause is less well known, but that’s only because since the Civil War there hasn’t been a presidential candidate who deployed mob violence to try to steal an election.
But there’s another distinction worth noting: The Electoral College provisions of the Constitution have become a pointless dead weight, their nasty proslavery purposes forgotten and irrelevant. By contrast, the disqualification clause is highly relevant—even prescient—and it would be serving the very purpose for which it was enacted: to bar those who have attempted to destroy America’s government, thereby betraying their oaths of office, from ever again participating in that government.
