Why efforts to keep Trump off primary ballots defy every principle of democracy

In the 2022 midterms, Joe Biden and other Democrats often said that “democracy is on the ballot.” But in 2024, whose name goes on the ballot is no longer a democratic question, but rather one decided by justices and bureaucrats. No democracy, no ballot, no problem — at least as far as Democrats in Colorado and Maine are concerned.

When it comes to former President Donald Trump, democracy as a concept no longer seems so appealing to his opponents.

In Colorado, a 4-3 majority of the state Supreme Court held that Trump must be excluded from the ballot because, they said, he participated in an insurrection and was therefore ineligible. In Maine, they didn’t even bother with the courts: Secretary of State Shenna Bellows just decided unilaterally to not allow anyone to vote for Trump.

In neither case did anyone bother to actually try Trump for this crime, let alone convict him. Trials? Due process? Who needs ‘em?

The problems with this are obvious immediately. We don’t trust elected officials to decide on their own whether someone is guilty of a crime. Even when the accused is obviously guilty in the minds of prosecutors and other officials, we make them go through a trial and convince a jury beyond a reasonable doubt. Only then may a judge impose a sentence, and only then can a person be deprived of his or her rights.

Until recently, one could be forgiven for thinking that this was a widely accepted sentiment in American life.

If Trump were ever convicted of a crime connected with the events of Jan. 6, 2021, there would be a good case to remove him from the ballot, though Congress has never made clear the procedure by which that would happen. The actions that day, while disgraceful and sometimes criminal, were more akin to a riot than an insurrection, in my opinion, and Trump was not even there when those hooligans stormed the U.S. Capitol. But his behavior was, at the very least, unbecoming of the office of the president. He was justly impeached for it.

But he was not convicted. The Senate chose not to impose any penalty on the outgoing president, though it was clearly in its power to do so by the plain language of the Constitution’s Article I, Section 3. That was a mistake, as I said at the time and afterward. If enough Senate Republicans had acted in accordance with their professed principles, Trump could have been legally excluded from holding any federal office.

But — and this part is very important — they didn’t.

There was a Senate trial. He was found not guilty. Since then, Trump has faced federal and state indictments, and trials will soon commence to decide the merits of the charges against him. But most of what is charged there is not “insurrection” or anything like it. And, again, he has not been convicted.

The way law and order works in a liberal democracy is that convicting someone of a crime must precede punishing him for a crime. What is going on in Colorado and Maine is not only undemocratic, it is lawless.

It’s not surprising, therefore, that other states’ courts and executives have declined to follow suit. Michigan’s Supreme Court, which also has a Democratic majority, found that they did not have the power to remove Trump from that state’s ballot. Courts in Minnesota and New Hampshire have done the same. The inconsistency will now be resolved by the U.S. Supreme Court.

But beyond that, even many Democrats are discomfited by the idea that a lone official can decide who Americans may vote for. Rep. Jared Golden of Maine, a Democrat who voted to impeach Trump in 2021 and opposes his 2024 candidacy, nonetheless found the process to be lacking legitimacy. “We are a nation of laws, and therefore until he is actually found guilty of the crime of insurrection, he should be allowed on the ballot,” Golden wrote.

When I wrote about the 14th Amendment in September, I said that if this legal sleight of hand were permitted, “some voters would challenge Trump in every state — but some other voters would challenge Biden in all 50, too. Every candidate would face a passel of mostly frivolous lawsuits. Even if you think Trump is an insurrectionist, the flaws of this process should be obvious.”

It’s already happening. More challenges to Trump are wending their way through state courts. In Texas, Lt. Gov. Dan Patrick said that the Lone Star State should remove Biden from the ballot because his continuing failure to enforce immigration laws amounts to insurrection, too. Does that make sense? No! But if the decision is left up to politicians, more ad hoc actions like those of Maine and Colorado are inevitable.

And here in Pennsylvania, a Democratic activist is suing to remove Rep. Scott Perry from the ballot because he challenged the results of the 2020 election. But there is some sanity in Harrisburg: Secretary of the Commonwealth Al Schmidt told reporters last week that he does not have the unilateral authority to remove Trump from Pennsylvania’s ballot.

This tit-for-tat legal warfare will never end without insisting that some fair process is required before telling the people they may not vote for this person or that. None of these people have been convicted in any court of any insurrectionary offense. Until they are, removing them from the ballot is undemocratic, unlawful, and deeply violative of the liberal norms of this republic.

It begins with Trump, but it will not end with him. Democracy is at stake in 2024, but not in the way Biden and his friends meant it two years ago.