Is “let the voters decide” how our democracy dies?
Is “let the voters decide” how our democracy dies?
Plus, an important development hidden in the immunity decision
Two big stories this week involving Trump and the rule of law. First, the DC Circuit Court ruled again yesterday that Trump is not above the law. The topline is unsurprising, but hidden in the ruling is a critical development that could help ensure Trump sees trial before the election. (More on this development below.)
Second, tomorrow the Supreme Court will hear oral arguments in Trump v. Anderson, the case that will decide whether Donald Trump can remain on the ballot in Colorado — or if he is barred by the Constitution’s provision that no person shall hold any office, civil or military, if, having previously taken an oath, they engaged in insurrection or gave aid and comfort to those who did.
A bellwether for a third term?
As Ian Bassin writes in Lawfare, the stakes of Trump v. Anderson go beyond this election, or even just the 14th Amendment. This case could be a grim foreshadowing of how the judiciary would respond to Trump seeking an unconstitutional third term. If SCOTUS won’t enforce the 14th Amendment, we should worry how they’ll handle the 22nd.
If the Court is persuaded by the arguments that barring Trump would be anti-democratic, that “the voters should decide,” they will have opened up a dangerous precedent. It could end with them bowing to him staying in office indefinitely on similar grounds. After all, Ian argues, how is barring someone for seeking to overthrow our democracy less important than barring them for serving two terms in office?
(Side note: this logic, that term limits are anti-democratic, is exactly the pretense autocrats have used to try to stay in power around the world. See Bolivia’s highest court allowing Evo Morales to run for a fourth term in 2019: “all people that were limited by the law and the constitution are hereby able to run for office, because it is up to the Bolivian people to decide.”)
As Ian writes, the Constitution’s restrictions on eligibility are a key part of the guardrails protecting our democracy — like Homer’s Odysseus tying himself to the mast:
To avoid the risk that voters might be tempted by the appeals of dynasty, [the framers] required presidents to be at least 35 years old. To avoid the risk that voters might be tempted by the appeals of a British nobleman and brought back under the thumb of the king, they required presidents to be natural-born citizens. To avoid the risk that voters might be tempted by the appeals of a popular long-serving incumbent, they required presidents to serve no more than two terms. And to avoid the risk that voters might be tempted by a demagogue uncommitted to the oath of office, they required presidents to not have violated a previous oath by engaging in insurrection.
The Court’s job is to play the role of Odysseus’s fellow sailors. Odysseus had his shipmates put wax in their ears so they wouldn’t be tempted by the siren’s song, just as our Framers gave the justices life tenure so as not to be swayed by the temporary passions of political majorities. So that he could hear the beautiful singing himself, Odysseus had his shipmates leave his ears open but tie him to the mast. Upon hearing the song, Circe warned, Odysseus would demand he be untied. It was at that moment, the goddess said, that his shipmates would need to yank the lash tighter.
A faction in this country is crying out in response to Trump’s appeals for the Court to loosen the ties when history teaches this is the moment for the justices to tighten them.
Because if the Court isn’t willing to impose the restrictions of the 14th Amendment in the face of today’s siren song of “letting the voters decide,” what does that say about the likelihood that they’ll do so when the 22nd Amendment is at stake? If the justices release us from the constraints we placed on ourselves in the 14th Amendment, limiting our own choices in order to preserve democracy, then our ship of state may, to quote Homer, “smash[] upon rocks as sharp as spears,” and our democracy may “join the many victims of the Sirens in a meadow filled with skeletons.”
Trump is asking the Court to ignore the Constitution
In asking the Court to “let the voters decide,” Trump and his supporters are asking it to ignore the 14th Amendment, argue conservative scholars Will Baude and Michael Paulsen writing in The Volokh Conspiracy:
[The argument to “let the people decide] is ultimately an objection to Section Three itself — an objection to what the Constitution says and does. It is at bottom an anti-constitutional argument — an argument for not complying with what the Constitution requires. In the end, the argument, notwithstanding whatever rhetorical appeal it might have, is wholly unpersuasive as a legal matter.
They point out that whether or not disqualification is “democratic” misses the point entirely:
The argument has a certain intuitive appeal: everybody supports "democracy" as an abstract proposition. But all versions of the argument share a common analytic flaw: they beg the relevant legal question entirely.
We begin with first principles. Our democracy is a constitutional democracy. The Constitution both channels and constrains democratic choice, and Section Three is one of those many constraints. It is a fundamental feature of the supreme Law of the Land. Accordingly, once we figure out exactly what constraints Section Three in fact imposes, that should settle the matter. The "democracy" objection is thus a complete red herring. If the Constitution imposes such a disqualification, that is indeed a limitation on voting and democratic choice. But it is a limitation that must be honored in a constitutional republic that imposes specific limitations and checks on the democratic political process.
A case brought by Republican voters challenging Trump’s eligibility
Lost in the shuffle of media coverage: this is a lawsuit brought in large part by Republican voters seeking to protect their party from the stain of an ineligible candidate.
And who is Anderson of Trump v. Anderson? Per WaPo’s Patrick Marley:
Norma Anderson left the Colorado legislature nearly two decades ago, but she still keeps a copy of the state’s statutes in her home office. She carries a pocket Constitution in her purse. She has another copy, slightly larger with images of the Founding Fathers on the cover, that she leaves on a table in her sitting room so she can consult it when she watches TV.
Anderson, like the other plaintiffs, is in many ways the model of a pro-democracy Republican.
Anderson, 91, is the unlikely face of a challenge to Trump’s campaign that will be heard by the Supreme Court on Thursday. She was a force in Colorado politics for decades, serving as the first female majority leader in both chambers of the legislature. She is a Republican but has long been skeptical of Trump and believes he is an insurrectionist who crossed a verboten line on Jan. 6, 2021, that should bar him from holding office again.
“He tried to overturn an election,” she said. “The very first time I ever ran, I didn’t win. I didn’t go out and try to change the election. I said, ‘Whoops, work harder next time, lady.’”
Any news story that does not include the Republican litigants is missing the crux of the issue. This case isn’t about Democrats vs. Republicans. This is about democracy vs. authoritarianism.
The court can (and should) decide if Trump engaged in insurrection
In deciding this case, SCOTUS has the authority to rule “on the merits” — i.e. directly on whether or not Donald Trump engaged in insurrection, and therefore if he is ineligible to be president again. In fact, the Court has a constitutional duty to do so.
But you don’t have to trust me on that.
Instead, trust three of the most respected election law experts in the country. Ned Foley is a constitutional law professor at Ohio State (read his substack here). Ben Ginsberg was the leading Republican election lawyer for decades, litigating Bush v. Gore among other landmark cases. Rick Hasen is a professor of law and political science at UCLA School of Law, and runs the essential Election Law Blog. (On reflection, that “three of” hedge may not be necessary.)
The three of them argue clearly and persuasively that:
[A]s a matter of election-law basics, … Colorado had the authority to determine Mr. Trump’s eligibility under Section 3 to hold the Office of President… this Court’s failure to resolve the merits of that question now would be extraordinarily dangerous for the Nation.
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All that said, regardless of what happens tomorrow, keep in mind the larger picture. One of the major parties is poised to nominate a candidate who can credibly be accused of engaging in insurrection against the Constitution of the United States. He has, in fact, called for the Constitution to be suspended. He is openly plotting a second-term agenda built around consolidating and abusing power.
This is not a question on a law school exam. This is an existential moment for our democracy.
D.C. Circuit deals blow to Trump’s delay strategy
Make that eight courts saying that Trump is not above the law. The DC Circuit confirmed, again, that Trump does not have presidential immunity for his conspiracy to overturn the 2020 election, this time in response to his claim that he is absolutely immune from criminal prosecution. This ruling is not surprising given the weaknesses in Trump’s arguments and the strength of the lower court’s rejection of them, but it still affirms a bedrock principle of our democracy.
But what’s most important about this ruling is what it means for Trump’s delay strategy. I asked Kristy Parker, a former federal prosecutor who leads our work around presidential immunity — including our ongoing case on behalf of Capitol Police officers that was cited repeatedly in the DC Circuit decision — about how to understand this development. Her views:
More important than the ruling itself, which was unsurprising, was that the three-judge panel, two appointed by a Democrat and one by a Republican, unanimously put a wrench into Trump’s delay strategy. It ruled that unless he petitions the Supreme Court for a stay pending review of his case within a week, it will return the case to District Court Judge Tanya Chutkan to resume pre-trial proceedings. And it removed his ability to appeal first to the full D.C. Circuit as an additional stalling tactic.
What’s next? Trump is expected to ask the Supreme Court to take up the case. They don’t have to — and given his weak arguments and the unanimity of the lower court decisions rejecting immunity, the Court should either deny Trump’s request for further review or summarily affirm the D.C. Circuit’s decision (and they should do one of those things quickly).
Given that the ultimate outcome should be clear by now (Trump simply is not immune from prosecution), if the Court does take up the case in order to have the final word, they should allow pre-trial proceedings to resume in the meantime. And, regardless, the Court should set an expedited briefing and argument schedule and decide the case as swiftly as possible. The public interest in the timely administration of criminal justice — at its zenith here given the impending presidential election — demands as much. The Court has expedited the disqualification case against Trump and has acted quickly in other cases (most notably Bush v. Gore) with significant implications for the voting public. This decision demands the same haste.
For more resources on the Trump prosecutions and the rule of law, visit our clearinghouse here.
Can defamation litigation prevent harmful election lies?
This week, our case Weisenbach v. Project Veritas et al. was resolved in a manner acceptable to all parties. Relevant statements by defendants Project Veritas and James O'Keefe are here.
In an article in The New York Times, University of Utah Law Professor RonNell Andersen Jones writes about the E. Jean Carroll suit and wonders about an “alarming trend of libel damages simply not seeming to carry the deterrent effect that defamation law presupposes they will have.”
My colleague Rachel Goodman, who leads our Law For Truth project, reflected on this question, weighing both the power and the limitations of defamation law around elections in particular:
[D]efamation litigation is not a complete cure for what’s broken in our media ecosystem. It cannot, on its own, fix the information environment such that all voters consume — or desire to consume — largely truthful information and have the tools to distinguish reliable statements of fact from lies and political opinion. Nor, standing alone, can it change political incentives for those who intentionally spread those lies. …
Our solutions must be layered and iterative. Enforcing our free speech standards through litigation affects profit incentives and thus changes the behavior of many players in our information ecosystem. As one intervention aimed at scaling back incentives to lie, defamation litigation is proving to be an important tool for nudging our discourse back in the right direction. And, given the corrosive impact on our democracy of watching the powerful spread lie after lie with impunity, doing nothing is not a viable alternative.
Read Rachel’s entire piece here.
What else we’re tracking:
Generative AI poses new risks to elections, as my colleague Nicole wrote recently. Votebeat’s Jessica Huseman has a fresh look at the new worries and familiar challenges the technology brings. (An aside: Votebeat is the essential election administration news source. Get their updates here.)
We’ve often talked about Poland as one of the best analogues for democratic backsliding in the U.S. After their surprising pro-democracy victory last year, Michelle Goldberg went to Warsaw and chronicled the difficulty of rebuilding liberal democracy after an eight-year slide to authoritarianism.
Most attention is on Trump’s consolidation-of-power agenda for a second term (see The Authoritarian Playbook for 2025). But he has also pledged to “impose his harmful, erroneous claims on school curricula,” writes poet and writer Clint Smith (from December).
A less-covered backsliding instance in Europe: Thousands are taking to the streets in Slovakia to push back against a prosecutorial reform plan pushed by its relatively new, pro-Russian government.
Similarly, the judiciary is the latest casualty of India’s backsliding, per Vaibhav Vats: “Just as India’s vibrant, secular democracy is transforming into an authoritarian, ethnonationalist state, the supreme court, once vaunted for its fierce independence, is failing to stand up for the rule of law.”
PBS Frontline has a new documentary film sure to become a defining historical account of the criminal charges against Donald Trump after his 2020 election loss. (For more bite-sized bits, check out their impressive set of interviews.)
The Bulwark, among my favorite pro-democracy publications, is expanding. It’s a great time to subscribe. (See this week a great piece from religious scholar Matthew D. Taylor on Speaker Johnson and the spirituality behind January 6th.)