A Solution to the Trump Ballot Conundrum – WSJ

Supporters of the Colorado decision will say Mr. Trump shouldn t be allowed to profit from having engaged in unprecedented wrongdoing. That s a coherent position, but it begs the question. We don t know if Mr. Trump engaged in constitutional wrongdoing. We don t even know if, legally speaking, what he did was unprecedented. One of the problems with cases like Colorado s is the danger of a double standard in which the rules used to kill off one party s candidate have never been and aren t being applied to the other party.

If the Jan. 6 riot was an insurrection, what about the 2020 Black Lives Matter riots? In the middle of those riots, Rep. Ayanna Pressley said: There needs to be unrest in the streets. Sen. Kamala Harris said: Everyone beware, because they re not gonna stop. They re not gonna stop before Election Day in November, and they re not gonna stop after Election Day . . . and they should not. And we should not. Rep. Maxine Waters even called the 1992 Los Angeles riots an insurrection as she egged them on. Ms. Pressley and Ms. Waters are still in Congress, and Ms. Harris went on to higher office.

There s a way out for the U.S. Supreme Court. It should reverse the Colorado decision on grounds requiring Section 3 cases to be decided under a pre-established set of rules.

In In re Griffin (1869), Chief Justice Salmon Chase decided that a person could be disqualified from office under Section 3 only if Congress so provides in a statute and only under the procedures laid out in that statute. This case isn t a Supreme Court precedent, since Chase was riding circuit at the time, hearing the controversy for a lower court. That s why the Colorado justices were able to ignore it but the U.S. Supreme Court is under no obligation to do so.

Congress enacted an insurrection statute in 1870 and has amended it since. It allows people to be prosecuted for engaging in an insurrection and disqualifies them from office if convicted. Section 3 itself doesn t require a criminal conviction; Congress could lower the standard if it chose. But the crucial point, which the justices could achieve by following Griffin, is to preserve democracy by preventing judges including the justices of the U.S. Supreme Court from deciding presidential elections on the basis of rules they make up on the fly.

via www.wsj.com

Prof. Jeb Rubenfeld of The Yale Law School. This sounds pretty good to me.