If Trump is disqualified, prepare for mass ballot-purges, US House picking next president

George W. Bush, justifying his establishment of the Troubled Assets Relief Program, stated back in 2008 that “I’ve abandoned free market principles to save the free market system.” We are now seeing the Democrat version of that political non sequitur.

Democrats and some never-Trump Republicans are now arguing that they must — not just can, but must — destroy democracy to save democracy. The holier-than-thou attitude of many on the left prevents them from recognizing the gross hypocrisy and authoritarianism behind their attempts to prevent a Trump second term.

Attempts to remove Trump from the ballot in various states are based on a fraudulent legal theory. The words “Senator” and “Representative in Congress” appear in the text of the Section 3 of the 14th Amendment, the section that excludes those who commit “rebellion or insurrection” from serving in those offices. The president and vice president are not listed in that section. That alone is enough to validate the argument that this provision does not apply to Trump.

Furthermore, the statute that defines the punishment for “rebellion or insurrection,” Title 18 USC 238, has never been used to prosecute Trump. That removes any argument that Trump has committed the crime of “insurrection.”

Finally, the legal reasoning behind this theory, which comes from lawyer and Judge Michael Luttig and a bevy of never-Trumper attorneys, would result in dangerous, anti-democratic consequences that even they would surely never accept.

“Section 3 of the 14th Amendment,” Luttig argues, “is self-executing, which means that congressional action is not required” to exclude an “insurrectionist” from seeking office. “Nor is it required that the former president be convicted of the criminal offense of an insurrection or rebellion against the United States under Title 18 USC 2383.”

Those pushing this legally insane theory have clearly not considered what will happen if they are successful. It would effectively give any state official who administers elections arbitrary power to declare anyone else an “insurrectionist,” thus forever banning from politics anyone they dislike or oppose.

A great example of the extreme results of this legal argument is a case recently filed against Rep. Scott Perry (R-Pa.) in his home state, which seeks to remove Perry from the ballot in Pennsylvania’s Apr. 23 primary because he supposedly violated the insurrection clause. Perry has never been charged with or convicted of any crime.

Perhaps left-wing lawyers are so focused on using the courts to defeat Trump that they have not recognized that this tool, typically exercised only in authoritarian countries such as Iran and Russia, will be used against them if they succeed.

Rep. Jamie Raskin (D-Md.) attempted to block 10 of the 24 electoral votes coming from Florida in January 2017 on specious grounds. If Maryland’s secretary of state feels like that is “insurrection,” then under this legal theory, you wouldn’t even need to make that case in a courtroom.

And why stop with Raskin? If a state official’s subjective feeling that somebody is an insurrectionist is enough, then partisan election officials will run wild. If the 14th Amendment is “self-executing,” then Florida’s Republican secretary of state — who is appointed, not elected — can arbitrarily throw that state’s eight Democratic members of Congress off the ballot for insurrection without even having to explain his reasoning to a judge.

The Supreme Court will not buy this theory because the justices are not stupid. But they also have a very practical reason to reject it. Electoral votes are counted by Congress. If Trump is purged from the ballot by due process, Republicans in Congress will rightly move to set aside electoral votes from Colorado, Maine and any other state that prevents Trump from running. This ugly remedy, consistent with the Constitution, would be needed to correct the Democrats’ much uglier and unconstitutional ballot-cleansing.

This could result in there being no majority for president. If so, under Article II, Section 3 of the Constitution, the newly sworn-in House of Representatives would choose the president, with each state getting one vote. No matter who is selected as president under these circumstances by a newly sworn in House of Representatives, it would throw our democratic republican system of government into chaos.

It is a great irony that those who claim to be protecting democracy from “insurrection” are engaging in their own little legal insurrection to destroy our democratic system of elections. Their hatred of Trump has blinded them to the consequences of their actions, and they have very much lost their way.

Brian Darling is former Counsel to Sen. Rand Paul (R-Ky.).