I loved law school. All my classmates noted this and maybe wondered what was wrong with me. I loved the learning and the questioning. Almost any area of law could be interesting, but nothing can match the allure of debates about US Constitutional Law. This isn’t to say I love our Constitution. I’ve been arguing for years that we need a serious overhaul — a new Constitutional Convention-level conversation and rewrite to fix what was wrong in 1790, in 1860, and what the right-wing SCOTUS is destroying today.
Still, it’s the thing we have to work with now, notwithstanding what Sen. Jackass Dingbat Vance (R-OH) has to say to the contrary. With the arguments later Thursday morning (later, if you’re reading this before the arguments) on Trump’s eligibility, I’m eating up everything I hear or see on the question. It’s one that’s close to me as I was writing about the 14th Amendment Section 3 disqualification question for years now -- including musing about filing an action here in Maryland.
Some fascinating arguments I hadn’t really heard fully thought out before were presented on MSNBC on Wednesday night. One of these arguments came from Harvard Prof. Lawrence Lessig, on why he thinks that SCOTUS should overrule the CO court. Coming from the other direction, Yale Law Prof, Akhil Reed Amar was arguing why SCOTUS should defer to the CO courts. Read on below for more...
Prof Lessig is someone I’ve followed for a long time. He shares my belief in a 2nd Constitutional Convention, and I’ve worked with an activist group he helped launch called Represent.Us, which focuses on reforms to our corrupt system.
Prof. Lessig was on in the 7:00 (EST) hour, on a special program hosted by Chris Hayes. Lessig argued the case that Section 3 is not self-executing — that section 5 authorized Congress to pass a law that would create a mechanism for enforcement, but that Congress has not done that. Ergo, regardless of whether Trump should be disqualified, there’s no way to do that.
Some have argued that the defect in what some states are doing is a lack of due process and maybe even the absence of a criminal trial on an insurrection charge. In my own consideration of whether to pursue Trump here in Maryland, I’ve been seriously troubled by whether Trump’s gotten a fair hearing on this, because it could be opening a Pandora’s Box.
Lessig is arguing something different. To him, it doesn’t matter whether Trump’s been found guilty of insurrection. Lessig does not believe there’s a legitimate way to enforce Section 3 right now, without...something more from Congress. I am not sure I agree, but it was a compelling argument.
As I mentioned, I’m concerned about who gets to decide if Trump should be disqualified, and especially concerned that each state might make their own decision.
In an op-ed in the New York Times, Prof. Akhil Amar argues this is exactly what the US Constitution provides — what he describes as a 50 State Solution to the Trump dilemma. As Amar notes, each state has its own rules for ballot access. Many candidates over the years have qualified for the ballot in some states but not in others. That would be nothing new.
Indeed Amar notes the real first Insurrection preceded the Civil War, as opponents sought to block Abraham Lincoln from becoming President. As Amar discussed at length on The Last Word, Lincoln was not even on any ballots south of Virginia in 1860 (he did appear on ballots printed in a few places in Virginia). Not only did he not get any electoral college votes below the Mason-Dixon, he did not even get any votes from any voters in states below Virginia. Zero votes. There was no way to even vote for Lincoln in those states.
I would say that is not a determinative precedent. In 1860, States didn’t print ballots. Lincoln was not an any ballots because no printer in the South would print a ballot with his name. Also, there was no court decision allowing leaving Lincoln off the ballots. Still, it’s interesting history.
Something similar could happen with Trump, if the Supreme Court follows Prof. Amar’s analysis. For better or worse, that is actually a feature of the Electoral College system. If Trump is off the ballot in CO or ME (at most, he might have a shot at one EV in Maine even if he’s on the ballot), it probably doesn’t matter to his chances.
However, Michigan would be crucial to his chances — a state he won in 2016, but lost in 2020. The Michigan Supreme Court dismissed a challenge to Trump’s pale on the primary ballot (the Ct decided that’s party business — I don’t know enough about MI law to comment), but MI courts might rule differently for the general election ballot. Especially if SCOTUS decides that each state has the right to disqualify Trump.
Amar notes some may ask “What about Democracy?” His answer:
Turnabout is fair play. And the 50-state-solution notion reminds us that Americans have never picked presidents in a single undifferentiated national contest. Eight years ago, constitutional federalism made Mr. Trump president even though Hillary Clinton won millions more votes nationally. This time around, constitutional federalism may well disfavor Mr. Trump.
That’s a fair point about our system — but it’s one that gives me great pause. Ironically, one of the big causes which Prof. Lessig’s group, Represent.US, has worked on is the passage of the National Popular Vote Interstate Compact (NPVIC). Along with Wolf-PAC, they’ve helped get it passed in several blue states. My Maryland was the first state to pass the NPVIC, led by then State Senator Jamie Raskin (now my US Rep).
I’ve long embraced the popular vote reform, but I have also cautioned that it could create other problems. There are red states where voter suppression is real, but has little national consequence, as those states are a long way from every voting statewide for a Democrat.
However, in a national popular vote election, EVERY vote will count equally, and every vote suppressed will be a national calamity — and something which will be fought over intensely.
I have argued that a move to a national popular vote should be accompanied by a federally-mandated nationwide standardization of voter registration, polling access, absentee ballot access, and the same rules for counting — or not counting -- votes.
If Amar’s view of the Electoral College and state power in our federal system is adopted by the Supreme Court, I think we have to have a serious conversation about national standardization. That would include ballot access, at least for Presidential races.
This result might lead to broader support on the Republican side for federalization of election rules, and maybe also for a national popular vote. I’ve long wondered where they would be on the Electoral College issue if John Kerry had won the electoral college despite being wiped-out in the popular vote.
Under a national popular vote, I imagine everyone can agree we certainly cannot have a system which allows one state to disqualify a candidate while other states respect the candidate’s place on the ballot.
I wonder if that prospect would trouble the members of the US Supreme Court…
One thing to note though, is we go into this case with the Constitution we have. Not the Constitution we wish we had. Same for the Justices. They shouldn’t be wish-casting on what the Constitution requires or allows. Textualism and all that. Constitutional law. There’s a lot I think we should change, but SCOTUS must reckon with the Constitution as it is written.
I’d love to hear your thoughts….