Trump Could Get Tossed Off the Ballot…by Two Law Professors

Breaking news: Donald Trump should be barred from the presidency.

That’s not me speaking, or Democratic politicians, or progressive activists. It’s two influential conservative legal scholars, Professors William Baude and Michael Stokes Paulsen, in a University of Pennsylvania Law Review article. Other leading conservative lawyers have backed their view, making Trump’s disqualification more than a hypothetical possibility.

This sounds incredible. Since when can scholars control the course of our democracy? But the authors’ argument could get serious attention from our conservative-dominated Supreme Court, which could well make the final call on the matter.

Why Would It Happen?

What stirred Baude and Paulsen to try to destroy Trump’s candidacy?

The Constitution. Or more specifically, Section 3 of the 14th Amendment. Though adopted in the wake of the Civil War, the section’s language and application are not limited to the former Confederate rebels whom it originally targeted.

The provision states that any federal or state official who has taken an oath to support the U.S. Constitution may not subsequently hold federal or state office if they “shall have engaged in insurrection or rebellion against the [Constitution], or given aid or comfort to the enemies [who have done so].”

Drawing on Section 3, the article’s key points boil down to this:

1. As President, Donald Trump took an oath to support the Constitution.

2. In late 2020 and early 2021, he engaged in an insurrection, or at least gave aid or comfort to those doing so. He did this through actions and inaction involving the January 6^th insurrection, the attempts to organize bogus slates of state electors, pressure on Vice President Mike Pence and other efforts to overturn the 2020 presidential election.

3. He therefore is barred from holding any U.S. office, including the presidency.

How Would It Happen?

So how might Trump’s disqualification come about?

In coming weeks or months, election officials in one or more states would bar Trump from the ballot. Professor Steven Calabresi, the co-founder and co-chair of the extremely influential Federalist Society, the 75,000-strong conservative legal network whose members include six of the nine current Supreme Court justices (as well as Baude and Paulsen), points the way for such action. Calling the article a “tour de force,” he insists that “Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them.”

Or, an advocacy group could sue to force these state officials to disqualify him. In fact, last year one such group, Citizens for Responsibility and Ethics in Washington, helped establish a modern-day precedent for taking legal action under Section 3, persuading a judge to remove an elected New Mexico country commissioner from office for participating in the January 6^th insurrection. Drawing on its own lengthy legal analysis, CREW has vowed to similarly sue to bar Trump’s candidacy and potential presidency.

Either way, the dispute would end up in court.

It being such a vital constitutional matter, appeals of any lower court decision could go all the way to the Supreme Court.

That’s where the article’s influential authors – and like-minded allies such as Professor Calabresi – come in. As I’ve noted, they interpret Section 3 as squarely applying to Trump, to bar him from the ballot and from office. The conservative Supreme Court majority could find their arguments persuasive.

The authors also assert that various governmental entities, including the courts (and implicitly including the Supreme Court) must enforce Section 3 to Trump’s detriment, even if doing so could be seen as a political matter. As they put it, “it is wrong to shrink from observing, and enforcing, the Constitution’s commands on the premise that doing so might be unpopular in some quarters, or fuel political anger, or resentment, or opposition, or retaliation.”

But Would It Really Happen?

Now, will such a case actually come to trial? I’m just speculating here – and to be sure, I’m no constitutional scholar. But leading conservative constitutional scholars believe it must, which provides promising grounds for a state official or advocacy group to act.

If it does come to trial, would the ruling be appealed all the way up to the Supreme Court? Would the conservative majority there agree to hear the case? Would the Court actually rule against Trump?

We’ll see. Again, I realize that the notion that two law professors could trigger the political demise of Donald Trump seems outlandish.

But bear in mind that these scholars and their allies carry substantial intellectual weight in conservative legal circles, that their Federalist Society ties to the six conservative justices are powerful and that the justices pride themselves on pursuing a conservative jurisprudential path.

In addition, only two of the six conservative justices might need to be persuaded, since the three liberal justices could join them to bar Trump from office.

One could argue that the six justices are politically astute actors who would not make a momentous ruling against a Republican presidential candidate. But despite pretending to be in sync with grassroots public support for him, many top Republicans and conservatives may secretly see Trump’s 2024 candidacy as a losing proposition. The justices move in those elite circles, not MAGA rallies.

In ruling on legitimate legal grounds, then, the conservative Supreme Court majority would not necessarily alienate those elites by disqualifying Trump. In fact, such a ruling could pave the way for a potentially stronger candidate to secure the Republican nomination for president and pursue a conservative agenda if elected.

Yes, it could seem strange if this all came to pass. But stranger things have happened in America in recent years. Such as the January 6^th insurrection.

Stay tuned.