ARGUMENT: DEMOCRACY WATCHIf SCOTUS Won’t Enforce the 14th Amendment, We Should Worry How They’ll Handle the 22nd
Some voters complain that that the Colorado Supreme Court is limiting voters’ choices by denying Donald Trump a place on the Colorado ballot because of Trump’s involvement in the Jan. 6 insurrection. But if the Supreme Court refuses to uphold the Colorado court’s ruling, how would it rule if a popular president wants to run for a third term? It can be argued that enforcing the 22nd Amendment, which limits a president to two terms, also limits voters’ choices.
Fast forward to August of this year: The Democrats are convening in Chicago to nominate their candidate for president. Behind the scenes, a secret scramble is in the works. Ian Bassin writes in Lawfare that with polling continuing to show the incumbent trailing badly, and protesters in the streets opposing the president’s support for the war in the Middle East invoking images of 1968, the president and his advisers conclude it would be in the best interests of the country if he stood down. Trying to cast the convention more as the RNC in Chicago in 1860 than the DNC in Chicago in 1968, they decide to throw the nomination open to the delegates so a more competitive candidate can emerge.
Bassin continues:
After three days of raucous floor argument unlike any seen in nearly a century, the delegates converge on two conclusions: First, the threat Donald Trump poses to the Republic is existential, and all other considerations aside, they must pick the person most likely to beat him; and second, the most popular figure out there with the best track record of unifying the Democratic coalition to win a hard national election is Barack Obama.
Of course, the objection is raised that Obama is ineligible, having already served two terms. The 22nd Amendment to the Constitution is clear: “No person shall be elected to the office of the President more than twice.” But that objection is met with a powerful rejoinder: Donald Trump is ineligible as well, barred by Section 3 of the 14th Amendment for having engaged in insurrection and having given aid and comfort to insurrectionists. Earlier this year, bowing to fears that Trump and his supporters might unleash chaos or violence if he was struck from the ballot, and accepting—at least implicitly—the argument that voters, not courts, should decide who to elect, the Supreme Court declined to enforce the terms of the 14th Amendment against Trump.
Tired of one standard applying to Donald Trump and another to everyone else, Democrats rally behind Obama and, on the fourth day, nominate him by acclamation. States led by Republican officials refuse to place him on the ballot, citing his ineligibility. But states led by Democratic officials, following the Supreme Court’s declination to bar Trump, place Obama on the ballot, putting him on the ballot in enough states to potentially win 270 Electoral College votes.
