Using the Constitution to kick Trump off the 2024 ballot is a very dumb idea

Colorado has joined several states in which watchdog groups have headed to court, hoping to use the 14th Amendment to bar Donald Trump from the 2024 ballot.

It is not off the table that Arizona could join the drive to deny the former president a spot on the presidential ticket.

Democratic Secretary of State Adrian Fontes has told both KTAR and The Arizona Republic that he doesn’t believe he has the authority to reject Trump, given an Arizona Supreme Court ruling last year. But he also made it clear that he doesn’t agree with that ruling and is still looking into the possibility of bouncing the Republican front-runner off the ballot.

“The secretary believes that this is an open question,” his spokesman Paul Smith-Leonard told me recently. “He’s consulting legal experts, he’s looking at past precedents and he is deciding how to decide on this question.”

Respectfully, Mr. Fontes. Don’t go there.

What is Section 3 of the 14th Amendment?

This is surely one of dumbest, most undemocratic ideas to come down the electoral pike in a long while. And in Arizona, that is saying something. 

There is growing talk among legal scholars, including some respected conservatives, that the 14th Amendment to the U.S. Constitution could and should be used to stop the Trump juggernaut.

Is Trump blocked from the 2024 ballot? The Constitution could keep him out of the running.

Specifically, Section 3, the post-Civil War amendment that disqualifies from office anyone who previously has taken the oath of office to support the Constitution then engaged in “insurrection or rebellion” against the government.

The scholarly set, along with a fair number of anti-Trump Republicans and Democrats, would tell you that Section 3 has Trump’s name written all over it.

What's wrong with using the 14th Amendment?

The problem is this:

Who decides whether Trump – or Arizona Sens./fake electors Jake Hoffman and Anthony Kern or U.S. Reps. Andy Biggs and Paul Gosar – engaged in insurrection or rebellion?

None of them has been charged with that crime (U.S. Code Section 2383), let alone been convicted.

Do I get to decide if their actions have disqualified them from the ballot? Do you?

Does Fontes?

Trump is charged with trying to obstruct a federal proceeding, in this case the certification that Joe Biden won the presidential election. But special counsel Jack Smith didn’t charge Trump with engaging in rebellion or insurrection, and I assume he wouldn’t have been shy about doing so had he thought he could get a conviction.

So who gets to decide if obstruction is close enough to insurrection to deny Trump a spot on the ballot?

Do I get to decide? Do you?

Does Fontes?

For three years now, Republicans have been complaining that our elections aren’t fair, that Trump’s opponents had their thumb on the scale. That there was a conspiracy to rob “We the People” (meaning, them) of our constitutional right to select our leaders.

Now comes this 14th Amendment stunt to reinforce their beliefs.

Are Republicans dishonest? Democrats immoral? Why toxic polarization threatens American democracy.

I’ve heard all the high-minded constitutional talk of how you don’t have to be charged or even convicted of insurrection to be disqualified for insurrection. How it is “self evident” that Trump’s actions amounted to insurrection.

With every poll that’s released, I can smell the desperation of those who say we need to protect our country from the scourge that is Trump.

They want to prevent democracy in order to save democracy.

They want to ignore due process in order achieve justice.

If Trump’s opponents are truly that terrified that he might win, here’s an idea:

Nominate a candidate who could beat him.

Find someone who isn’t a tottering 81-year-old to put forth as the next leader of the free world – someone who doesn’t look like he should be running for president of the Golden Acres rest home.

Ultimately, if Fontes or any other secretary of state decrees that Donald Trump is not qualified to run for president, there will be a four-year coast-to-coast serenade of I told you so’s from the likes of Kari Lake, Marjorie Taylor Greene and the rest of the MAGA chorus.

Then it’ll land in the courts. And I think we all know which court will have the final say.

Don’t do it, Secretary Fontes. You want to beat Trump? Do it the old-fashioned, fundamentally, quintessentially American way.

Let’s vote.

Laurie Roberts is a columnist for the Arizona Republic, where this column first ran. Follow her on X, formerly Twitter: @LaurieRoberts