I just reviewed some of the arguments made in the SCOTUS hearings regarding Colorado’s decision to remove Trump from their ballots under Section 3 of the Fourteenth Amendment. Here is the transcript.
There is an exchange on pages 114-115 between Associate Justice Bret Kavanaugh and Counsel for the Respondents (Anderson et al) Jason Murray that really irks me because the word “disenfranchise” is used in two very different contexts by the Associate Justice and the attorney representing Colorado.
Here is the entire passage:
JUSTICE KAVANAUGH: … Last question. In trying to figure out what Section 3 means and kind of to the extent it's elusive language or vague language, what about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide? Because your position has the effect of disenfranchising voters to a significant degree. And should that be something -- does that come in when we think about should we read Section 3 this way or read it that way? What about the background principle, if you agree, of democracy?
MR. MURRAY: I'd like to make three points on that, Justice Kavanaugh. The first is that constitutional safeguards are for the purpose of safeguarding our democracy not just for the next election cycle but for generations to come. And, second, Section 3 is designed to protect our democracy in that very way. The Framers of Section 3 knew from painful experience that those who had violently broken their oaths to the Constitution couldn't be trusted to hold power again because they could dismantle our constitutional democracy from within, and so they created a democratic safety valve. President Trump can go ask Congress to give him amnesty by a two-thirds vote. But, unless he does that, our Constitution protects us from insurrectionists. And, third, this case illustrates the danger of refusing to apply Section 3 as written because the reason we're here is that President Trump tried to disenfranchise 80 million Americans who voted against him. And the Constitution doesn't require that he be given another chance.
Next, let’s be sure we have the correct definition for the verb “disenfranchise”. This one is from Merriam-Webster website:
disenfranchise (verb)
...to deprive of a franchise, of a legal right, or of some privilege or immunity;
especially : to deprive of the right to vote
example: disenfranchising the poor and elderly
The Associate Justice appears to be saying that if our state and federal governments collectively adhere to the Constitution (and enforce Section 3 of Amendment XIV), that process “disenfranchises” millions of voters. Poppycock.
- When voters go to the polling place and select a candidate that later is deemed to be the loser of the election, have they been disenfranchised? <Of course not.>
- When a candidate dies after earning the most votes in an election, but before taking office, are the voters disenfranchised? <Surely you must be joking. Who is acting as the disenfranchiser of these voters?>
- If a candidate runs for office under false pretenses (e.g., he misrepresented his age on the filing documents, and he would have been deemed ineligible if he had been truthful) and then he wins the primary — but his deceit is discovered before the general election and he is immediately disqualified by the Secretary of State, are the voters disenfranchised? <Some may feel they were, but feelings are not superior to laws.>
- If an American citizen defects to Russia and gives up his American passport, and then swears an oath to Vladimir Putin, but later comes back to the U.S. and submits papers to run for federal office, are voters disenfranchised when he is declared ineligible to run for office? <Nope.>
- Suppose in 2023, Congress had passed a law that no one over age 80 may run for President, and suppose they overrode President Biden’s veto. If Biden tried to run again, but was thwarted by Secretaries of State in all 50 states, are his voters being disenfranchised? <Perhaps yes, because the Courts might find that the subject legislation was unconstitutional, and the only way the qualifications for electing a President could be changed is via a Constitutional Amendment.>
- Suppose Jesus of Nazareth is reborn in the State of California. Suppose further that he gets a Facebook account and obtains 300 million followers. Next, suppose he submits paperwork to run for President, but since he’s only 25 years old, the Secretaries of State in 23 of 50 states disqualify him from the primary ballot in those States. These disqualifications make his devout followers very angry, but are the voters truly being disenfranchised by such disqualifications? <Please see my argument below.>
Justice Kavanaugh takes the position that voters are disenfranchised if their favorite candidate becomes unqualified for the office after holding that office previously. I think he has it wrong.
The verb to disenfranchise is an action word and it applies to the object of the disenfranchisement — the voters. Voters are disenfranchised when they are not allowed to vote period.
The processes of “disqualification” and “qualification” which affect candidates, is perpendicular to the processes of “franchisement” and “disenfranchisement”, which affect voters.
The Constitution does not give me the “right” to vote for my dog (even though he is adorable and I wrote I very cute poem about him on DK). Therefore disqualifying my dog from the ballot does nothing to disenfranchise me. I never had a right to vote for the dog in the first place.
I think Colorado attorney Murray is using the word disenfranchisement correctly when he states President Trump tried to disenfranchise 80 million Americans who voted against him. Trump wanted to take away their votes for the winning candidate after the election was completed.
Thankfully, Trumps efforts, on January 6, 2021 and previously, to disenfranchise all those Biden voters was not successful!