Democrats mull ‘break glass’ option to stop Donald Trump running for President

A fringe legal theory has been revived by Democrats and left-leaning scholars in a last-ditch bid to stop Donald Trump’s name appearing on ballot papers next year.

Former US President Donald Trump. Picture: AFP

If four indictments don’t succeed in knocking Donald Trump out of the 2024 presidential race, Democrats have come up with a “break glass” option: prevent his name from appearing on the ballot in the first place.

The potentially ingenious plan wouldn’t require any judicial process or even a vote, merely a decision by top state election officials – elected politicians in the US – to rule Trump unfit for office before voting in late 2024.

Amid polls that give the former president an unassailable lead in his bid to pick up the Republican Party nomination, his opponents have revived a fringe legal theory based on the 14th Amendment of the US constitution, ratified in the wake of the Civil War in 1868.

Section Three, introduced to stop former Confederate officials from running for public office in the newly-reunited states. It bars from standing for election anyone who has taken an oath of office and subsequently “engaged in insurrection or rebellion against [the US] … or given aid or comfort to the enemies thereof”.

“The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the US Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again,” wrote Harvard law professor Laurence Tribe and former US federal judge Michael Luttig in The Atlantic last month.

The idea has become the talk of the town in Washington, prompting numerous reviews in the Washington Post, New York Times and a favourable 126-page treatise by two self-styled conservative law academics in the Pennsylvania Law Review, published last month.

Democrat – and some Republican – state secretaries of state might be tempted to “break glass” in the face of a string of major polls that give Donald Trump and Joe Biden equal support in the event of a 2020 rematch next year, despite the former president’s mounting legal woes.

Conservative former judge Michael Luttig who argues that the Constitution prohibits Trump from ever being president again,
Says that the Supreme Court will likely decide this "fundamental question" before the first primary next year.

(Video: MSNBC) pic.twitter.com/eEkq5lzqf7

— Republicans against Trump (@RpsAgainstTrump) September 4, 2023

Jocelyn Benson, a Democrat and Secretary of State for Michigan, last month said in a radio interview “valid legal arguments” could be made to keep Trump’s name off the ballot in her state, ideally in concert with other states.

The Justice Department in New Hampshire, a state led by Republican governor Chris Sununu, a trenchant critic of the former president, last week said it was investigating the “potential applicability [of the 14th amendment] to the upcoming presidential election cycle”.

Mr Trump, alive to the possibility secretaries of state could unilaterally keep his name off ballots, slammed the idea on Monday (Tuesday AEST) as a “another trick used by the radical left communists, Marxists, and fascists, to again steal an election”.

“Almost all legal scholars have voiced opinions that the 14th Amendment has no legal basis or standing relative to the upcoming 2024 Presidential Election,” he added.

Indeed, the strategy faces significant hurdles, perhaps chief among them that Trump hasn’t been charged at the state or federal level with insurrection or rebellion.

Federal special prosecutor Jack Smith indicted the former president for obstructing an official proceeding and conspiring to defraud the government and disenfranchise voters, based on his behaviour following the 2020 election and leading up to January 6. Using the same set of facts, Georgia prosecutor Fani Willis opted for racketeering charges.

The strategy would face a perilous path to the Supreme Court, where it would almost certainly end up under challenge, given the precedent surrounding the section and a US bias to resolve political issues democratically.

The pacifist Eugene Debs was imprisoned on charges of sedition in 1918 for publicly encouraging Americans to resist the draft in World War I, yet his name appeared on 40 ballots in 1920, and no-one thought to use the 14th amendment to stop it, according to David Beito is a research fellow at the independent Institute, California, writing in The Hill last week.

My op-ed is getting some attention in the comments section. Not surprisingly, many are not bothering to read the arguments.

The 14th Amendment case against Trump disregards history and precedent https://t.co/Yh51VS6WSb

— David T. Beito (@davidtbeito) September 1, 2023

Others, such as MSNBC contributor David Frum, worry allowing state election officials to unilaterally decide who can and cannot appear on state election ballots would be “misguided and dangerous”, for obvious reasons.

“The use of the section to debar candidates would not stop at Trump. It would become a dangerously convenient tool of partisan politics,” he wrote last week in the Atlantic.

The politics of resorting to a novel legal theory to keep Trump from running could backfire for Democrats too, given the ruling party has for the best part of three years slammed the former president for relying on a novel legal theory to delay the certification of the 2020 election.

The Section 14 push does appear to have a partisan, rather than academic, hue. The two “conservative” academics referred to above, William Baude and Michael Paulsen, signed a 2016 petition to stop Trump from being elected the first time.

“We urge all like-minded Americans to vote their consciences … [and] deny the executive power of the United States to a man as unfit to wield it as Donald Trump,” they wrote.