I’m Running for President

Of the United States of America, of course.

There is a great deal of current consternation over whether Donald J. Trump is eligible to serve as President of the United States again. The Fourteenth Amendment to the U.S. Constitution stipulates that individuals who have “engaged in insurrection or rebellion” shall not “hold any office, civil or military, under the United States, or under any state.” Some have argued that Trump cannot hold office due to his involvement in various efforts to overturn the 2020 election results.

The sheer variety of responses that this argument has engendered is interesting. Ballot access is a special interest of mine and watching each new addendum roll in has been a fascinating parade of obscure historical facts, legal points, and sometimes disturbed arguments. I cannot hope to cover all of these, but I’d like to share a few with you.

The straightforward case for disqualification is that Trump is disqualified because his actions subsequent to the 2020 election – including but not limited to Jan. 6 – constitute insurrection.

Now the responses. First, Trump cannot be disqualified because he is not guilty of insurrection. There is some validity to this point: no court of law has deemed Trump guilty of insurrection or rebellion, and neither has Congress or the executive branch. Given that no such determination has been made, it seems odd to leave it up to random state officials to buck authority, “nullify” the law and remove Trump from the ballot.

Second, Trump cannot be disqualified because Congress suspended the operation of the Fourteenth Amendment’s insurrection clause in the 1870s. Congress did no such thing, but simply forgave certain people who had supported the Confederacy. The insurrection clause remains active.

Third, the particularly absurd argument that the Fourteenth Amendment does not apply to Trump because “any office” somehow does not include the presidency. Three of the five justices of the Colorado Supreme Court subscribe to this theory.

These are very interesting arguments, however none of them really matter when it comes to ballot access. This is because the right of active suffrage (the ability of a candidate to place their name on a ballot) is separate from the right of holding office. This is widely recognized in American law. Nothing is preventing a candidate from running for an office for which they are not eligible. If Americans can vote for (and even elect) dead people, convicted felons, and actual Nazis and Stalinists, why not former President Trump, a man who no court has convicted for insurrection or rebellion?

In 1972, an unconstitutionally young person ran for president and was on the ballot in 25 states. They had no chance of winning, no chance of holding office, but they ran and they were allowed on the ballot. They were still a legitimate choice for the voter; had they won, their running mate likely would have taken office. If Trump wins and is subsequently found ineligible, his running mate would likely take office as president.

40% of Americans voted for Horace Greeley, in 1872, who died shortly after the election. Greeley thus certainly was not eligible for office, and so his electors supported other candidates in the Electoral College.

I will also point out that when the Fourteenth Amendment was originally written, ballot access couldn’t even be restricted. The government did not print out ballots until the 1890s; instead, people brought their own paper with the name of who they wanted to vote for. Anyone could bring any name, and there was no restriction on whether someone’s name could be on the ballot or not.

This, in the end, is why I believe Trump should remain on the ballot: the question of his eligibility is different from the question of whether he should be on the ballot. The fun side of all this law is that I can run for president myself despite being unconstitutionally young. If eligibility for the presidency doesn’t determine ballot access, then why can’t I run?