The Memo: Democrats worry about backlash over Trump ballot bans

Decisions that would knock former President Trump off the ballot in two states run a high risk of backfiring on President Biden and his party.

Mindful of the dangers, high-profile Democrats in elected office including California Gov. Gavin Newsom — as well as influential commentators such as David Axelrod — have expressed their resistance to the effort.

“There is no doubt that Donald Trump is a threat to our liberties and even to our democracy,” Newsom said in a statement in the days after the first of the two decisions, from the Colorado Supreme Court, was released. “But in California, we defeat candidates at the polls.”

Axelrod, appearing on CNN after the second decision, which came from Maine Secretary of State Shenna Bellows, said: “I have very, very strong reservations about all of this. I do think it would rip the country apart if he were actually prevented from running, because tens of millions of people want to vote for him.” 

The constitutional point at issue is whether the 14th Amendment disqualifies Trump from retaking the presidency. 

The amendment dates from the Civil War period. Section 3 prohibits people who “have engaged in insurrection or rebellion” against the Constitution from holding office, unless a two-thirds vote of both houses of Congress makes an exception.

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More from The Hill:

• Trump, 14th Amendment put Supreme Court on the spot
• Barr says efforts to boot Trump from primary ballots ‘doomed to legal failure’
• ‘View’ host says Trump ballot ban creates ‘visual’ of ‘a rigged election’

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The Colorado Supreme Court decided that Trump’s words and actions around the Capitol riot of Jan. 6, 2021, were egregious enough to merit disqualification. It announced the decision on Dec. 19. Nine days later, Bellows made a similar decision in Maine.

The two decisions were instantly controversial for obvious reasons. 

The Colorado Supreme Court split 4-3 on its verdict even though all seven justices were nominated by Democratic governors of the Centennial State. The state GOP has already filed an appeal urging the Supreme Court to intervene, and it is expected Trump will soon appeal himself.

With respect to Maine, Trump on Tuesday appealed Bellows’s decision to the state Superior Court, arguing that the secretary of state had failed to provide due process, was “biased” and lacked the proper “legal authority to consider the federal constitutional issues” at stake.

Former President Trump (Photo by Brandon Bell/Getty Images)

The legal arguments around the amendment revolve around a handful of key issues. 

They include whether the amendment was intended to cover the office of the presidency, whether a person can be disqualified having not been convicted by the courts, and whether it is legitimate to extend to the present day a provision originally intended to prevent Confederates from taking office right after the Civil War.

Allan Lichtman, a history professor at American University, contended that the answers to the key questions were “resounding” in favor of disqualification.

He said, for example, that the people who framed the amendment “did not intend this just to apply to Confederates or they wouldn’t have made it a constitutional amendment. The debates indicate that this was meant to guard the republic in perpetuity, not just in the aftermath of the rebellion.”

A minority of conservative voters have argued similarly, including two members of the conservative Federalist Society who last summer released a paper arguing Trump should indeed be disqualified.

Conversely, some critics of Trump argue against the use of the 14th Amendment in this way. Bill Barr, who served as Trump’s attorney general but has since become a trenchant critic, argued in a Tuesday op-ed in The Free Press that the efforts to strike the former president from the ballot are “legally untenable.”

Democrats who have tried to put some distance between themselves and the decision tend to worry more about the likely electoral impact than the finer points of the constitutional argument.

They fret that the efforts to keep Trump off the ballot play far too neatly into the former president’s claims that he is being unfairly targeted.

They draw an analogy with the four times Trump was indicted on criminal charges last year. In each of those instances, Republican voters rallied around Trump, boosting his chances of claiming the party nomination.

On Tuesday afternoon, Trump led the GOP field by 52 points in the national polling average maintained by The Hill and Decision Desk HQ.

“It’s likely to gin up anger — and turnout — among the Trump and MAGA people,” said Democratic consultant Hank Sheinkopf. “They will see this as part of the continued conspiracy to prevent Donald Trump from being president of the United States.” 

The decisions in Colorado and Maine drew some celebrations from grassroots Democrats and Trump critics, especially online. But Sheinkopf argued that ballot exclusion was “not a smart strategy” adding, “if people think this is good for Joe Biden, they have lost their minds.”

The danger is simple. Voters, including some independents as well as Trump diehards, might well recoil at efforts to throw the leading contender for the GOP nomination off the ballot. In the end, they might end up more likely to vote for him.

It’s an outcome that the Trump campaign would dearly like to see.

Two of the most senior members of the campaign to reelect Trump released a memo on the state of the race Tuesday.

Chris LaCivita and Susie Wiles wrote that when Democrats saw the indictments had failed to capsize Trump, they “launched unconstitutional efforts to remove President Trump from the ballot, thereby removing the opportunity for the voters to decide an election.”

If that argument resonates beyond the MAGA base, it could spell trouble for Biden.

The Memo is a reported column by Niall Stanage.