". . . and having done all . . . stand firm." Eph. 6:13


Trump’s SCOTUS Win Has a Major Flaw. Here’s What to Do about It

March 5, 2024

The Supreme Court thwarted an undemocratic attempt to prevent citizens from voting for President Donald Trump in multiple states, but its unanimous ruling unleashed new attempts to stifle the vox populi and pointed out an urgent step Congress must take to protect free and fair elections from left-wing machinations.

On the eve of the Super Tuesday primaries, Supreme Court justices of all ideological stripes — originalist, progressive, and Machiavellian — decided with one accord that neither the Colorado Supreme Court nor any other state authority could strike a federal candidate from the ballot based on allegations he committed insurrection. The power, rooted in the “insurrection clause” (Section 3) of the 14th Amendment, belongs to the U.S. Congress alone, they wrote. The 9-0 ruling in Trump v. Anderson shuts down, on technical grounds, a raft of lawsuits and proposed executive actions to deny voters the right to vote for Donald Trump. But it opens other avenues toward legislative election-fixing.

Anatomy of Lawfare

The constitutional issues began during the January 6 riot, which Democrats instantly branded an “insurrection” and with President Trump as its ringleader. They made unsuccessful test runs against two members of Congress, Rep. Marjorie Taylor Greene (R-Ga.) and former Congressman Madison Cawthorn (R-N.C.), before the 2022 election. Then a number of Soros-funded groups including the Citizens for Responsibility and Ethics in Washington (CREW) and the Constitutional Accountability Center went after the big prize: President Trump.

A Colorado district court decided, after a five-day trial, that President Trump “engaged in insurrection.” But the 14th Amendment applies only to those defined as “officers,” and the court decided that term does not apply to the presidency. In December, seven justices of the Colorado Supreme Court — all of whom were appointed by Democratic governors — issued a 4-3 opinion that the president is an officer, and the 14th Amendment eliminated Trump from consideration as a candidate for president. “President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it,” the liberal justices asserted in their 133-page, unsigned opinion. “A majority of the court holds that Trump is disqualified from holding the office of president under section 3 of the 14th Amendment.” The court ordered Colorado Secretary of State Jena Griswold (D) not to list Trump’s name on the ballot nor to “count any write-in votes cast for him” — and the Democrat was all-too happy to comply. But their ruling was stayed pending today’s ruling, so Colorado’s primary ballots for tomorrow’s primary will contain President’s Trump’s name.

On Monday morning, the U.S. Supreme Court unanimously overturned their decision.

Supreme Wisdom

Significantly, the case clarifies that only congressional legislation can trigger a federal candidate’s removal from the ballot. Section 5 of the 14th Amendment enables Congress — and Congress alone — to pass ‘appropriate legislation’ to ‘enforce’ the Fourteenth Amendment,” according to the justices. “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the [p]residency.” Since the 14th Amendment fundamentally “expand[ed] federal power at the expense of state autonomy,” any attempt to confer the right to disqualify candidates from federal office to the states “would invert the Fourteenth Amendment’s rebalancing of federal and state power.”

In other words: Sorry liberals, the federal government already removed those states’ rights.

The benefit to federal legislation, justices wrote, is that it would prevent all 50 states from reaching conflicting answers, using different criteria, about who is guilty of “insurrection.” The resulting patchwork of legal rulings could undercut the presidency’s status as the one office that represents all Americans. The full court’s decision contained welcome nods to Original Intent by quoting the framers of the 14th Amendment and noting that Colorado authorities had not “identified any tradition of state enforcement” of the insurrection clause. The justices identified one, Rep. John Christy of Georgia in 1868, whose election nullification was finalized by a congressional committee.

This worried justices that a future Congress, state official, or unelected judge could overturn an election by finding the winning candidate guilty of “insurrection” ex post facto. “The disruption would be all the more acute — and could nullify the votes of millions and change the election result — if Section 3 enforcement were attempted after the [n]ation has voted. Nothing in the Constitution requires that we endure such chaos — arriving at any time or different times, up to and perhaps beyond the [i]nauguration.”

Although the opinion was unanimous, Justice Amy Coney Barrett wrote a concurring opinion urging peace. And activist justices Sonia Sotomayor, Elena Kagan, and Katanji Brown Jackson wrote in a separate concurrence that they would have allowed for “other potential means of federal enforcement” — perhaps if a judge convicted a candidate of insurrection.

The High Court worked at breakneck speed, issuing a ruling only 25 days after oral arguments on February 8. But that should surprise no one. As this author wrote at the time, “Dismissing the case … should not require much deliberation. The Colorado Supreme Court decision is erroneous in nearly every particular.” The justices even cited the exact case this author quoted in The Washington Stand (with help from Josh Blackman) — Justice Salmon P. Chase’s 1869 ruling in Griffin’s Case — that requires congressional legislation to enact the amendment. Justices did not appear to settle whether the president qualifies as an officer, a view Chief Justice John Roberts opposed in a 2010 case. The court ruled on the technicalities of the law and did not weigh in on the matter of guilt or innocence. But President Trump’s call for protesters to “peacefully and patriotically make your voices heard” does not break the relevant federal law (18 U.S. Code § 2102), which defines “insurrection” as “urging or instigating other persons to riot.”

Conservatives rejoiced at the decision.

‘A Big Win for America’

No one celebrated the unanimous ruling more than Donald Trump, who called the decision a “BIG WIN FOR AMERICA!!!” (Emphasis in original.) Many others echoed his sentiments. “Today, the U.S. Supreme Court affirmed what we all knew: the Colorado Supreme Court engaged in a purely partisan attack against the frontrunner for the Republican presidential primary,” wrote Speaker of the House Mike Johnson (R-La.). “States engaging in the same activist, undemocratic behaviors should take notice and leave it to the American people to decide who will be president.”

“Why did so many law professors fall for a garbage legal theory the Supreme Court just struck down unanimously?” asked Senator J.D. Vance (R-Ohio), a dark horse candidate to become Trump’s 2024 running mate.

A few, well-compensated Christians who have dedicated their careers to attempting to push evangelicals leftward, had embraced the lawsuit out of their disdain for Donald Trump. “This actually isn’t [the] breaking of norms,” asserted Russell Moore, the former leader of the Southern Baptist Convention’s Ethics and Religious Liberty Commission (ERLC) who is now the editor of Christianity Today, about the lawsuit. Although no state has ever removed a presidential candidate’s name from the ballot for insurrection, Moore said, “That isn’t norm-breaking. That’s what the norms are.” Likewise, former Alliance Defending Freedom lawyer and Mitt Romney 2012 evangelical outreach person David French wrote an op-ed for The New York Times in January titled, “The Case for Disqualifying Trump is Strong.” On Monday, he followed it up by asserting, “The Supreme Court Just Erased Part of the Constitution.”

But Rev. Franklin Graham of Samaritan’s Purse better reflected President Trump’s rock-solid support among evangelical voters. Graham declared this “important ruling” represents “not only a win for former President Trump, but sends an important message and helps protect future elections and candidates in our country.”

They may want to contain their enthusiasm, because the lawsuit raises a particularly troubling likelihood that left-wing radicals will exploit the justice system to thwart President Trump yet again.

Anti-Trump Lawfare 4.0

Democratic congressmen greeted the decision by vowing to launch a new round of election-denying legislation against Trump. Having failed to impeach him twice (once after he left office), remove him from the ballot as an “insurrectionist,” or convict him of some other crime that might disqualify him (so far), the Democrats prepare to launch their anti-Trump lawfare 4.0: Declare Trump guilty of insurrection through legislation.

Immediately after the ruling, Rep. Jamie Raskin (R-Md.) promised to reintroduce legislation that would accomplish what the Supreme Court denied. In 2021, he introduced two pieces of legislation with Rep. Debbie Wasserman Schultz (D-Fla.): H. Con. Res. 93 declared the January 6 assault an insurrection and H.R. 7906 established the procedures to disqualify a candidate for federal office under the 14th Amendment. 

Now he, Wasserman Schultz, and Rep. Eric Swalwell (D-Calif.) “are going to revise it in light of the Supreme Court’s decision,” said Raskin on Monday. “I don’t have a lot of hope that Speaker Johnson will allow us to bring enforcement legislation to the floor, but we have to try and do it.”

The good news is the legislation is going nowhere, at least for now. “Democrats need to get a grip. In this country, the American people decide the next president — not the courts and not the Congress,” said Speaker Johnson’s office. But Johnson has a slender majority. No majority holds forever. And Democrats have proven themselves nothing but creative in finding ways to pass legislation they want.

Then-Speaker of the House Nancy Pelosi (D-Calif.) articulated the Left’s single-minded mania to ignore any and all legal barriers to imposing their will on the American people as she prepared to pass Obamacare in 2010. “If the gate’s closed, we’ll go over the fence. If the fence is too high, we’ll pole vault in. If that doesn’t work, we’ll parachute in, but we’re going to get [Obamacare] passed,” she said. “We’re not going to let any obstacles stand in our way,” said Pelosi, regurgitating those remarks nine years later.

Will secular progressives be any less committed to overturning an election, if they have the opportunity? Theoretically, Democrats could add these bills as amendments to “must-pass” omnibus bills — as they did the Electoral Count Reform and Presidential Transition Improvement Act (ECRA) in 2022. It is incumbent upon Republicans to seize the moment and prevent that from happening.

How Congress Must Save Elections

The Supreme Court’s ruling previews a terrifying threat to election integrity and the sovereignty of the U.S. voter. As this author has written at The Daily Wire, “Some argue Congress could bar someone from running from office by a simple majority vote — the kind congressional Democrats have already used twice to strip House Republicans of their committee assignments — or that Congress should pass a law enabling judges to determine a candidate’s ability to seek office, giving judges a veto over voters’ preferences.”

Congress must act immediately to prevent left-wing secularists from weaponizing federal legislation and barring conservative candidates from appearing on the ballot under the pretext of “insurrection.” As usual, the Constitution shows the way to protect America. Section 3 of the 14th Amendment states that, while Congress may disqualify a candidate guilty of a bona fide insurrection from serving in office, “Congress may by a vote of two-thirds of each House, remove such disability.” In light of this Supreme Court decision, Congress must require that all legislation establishing the means by which a candidate may be found guilty of insurrection must also pass by a two-thirds supermajority of both houses.

The voters’ choice should be sacrosanct. The well-financed legal effort to remove Donald Trump from the ballot proves the ruthless means liberals will employ in order to cling to power — to vitiate democracy in the name of preserving “Our Democracy.”TM Democrats have already passed legislation that changes the way elections are certified. If Democrats deny U.S. citizens their right to vote for the candidate of their choice, it will undercut their 2024 campaign pledge to “defend democracy.”

Ultimately, enacting this would require amending the Constitution — an unlikely scenario in our divided America. But cementing this reform, at least legislatively, is an absolute necessity in light of the bullet our nation dodged on Monday.

Ben Johnson is senior reporter and editor at The Washington Stand.