With the U.S. Supreme Court's decision to hear arguments over Colorado's high court ruling barring former President Donald Trump from the primary ballot, the betting window is open regarding how and on what grounds SCOTUS will rule.
One interesting theory that ought to get the attention of the self-described constitutional originalists out there comes from this op-ed in The Hill. It gets to the idea of whether Section 3 of the 14th Amendment – as its post-Civil War framers understood it– would automatically bar Trump from a state primary ballot.
Every four years, each party issues a “Call to Convention.” The parties have a First Amendment right to choose a nominee by whatever rules the majority supports. There is no constitutional bar to including in this call rules changes every four years. Moreover, once the delegates assemble, they can adopt a different set of rules than authorized in the call.
Even if Donald Trump amassed a delegate majority, the convention could still deny him the nomination.
Possibly – but extremely unlikely. In 2016, some Republican activists mounted a last-ditch convention effort to change the rules and allow convention delegates to vote their consciences rather than be bound to vote according to the primary and caucus results in their respective states.
Despite some histrionics on the convention floor, the effort failed – utterly and completely. Entertaining the possibility that a GOP convention would even toy with the idea of denying Trump the nomination – if he has the delegates to win – is a fantasy.
That doesn't mean legal maneuvering couldn't try to keep Trump off the general election ballot is one, two, or several states. But such angling may be moot once SCOTUS issues its ruling in the Colorado case.
The authors note that Congress could solved all of this following the Jan. 6, 2021, insurrection. But as Congress is won't to do, it did nothing:
Congress had the power after Jan. 6 to apply it to Trump, or any primary contestant. Lawmakers refused. Bad policy, perhaps. But the law nonetheless.
Terrible policy, really. But yes, the one we're stuck with. This means that the only way to prevent a Trumpian return to power is to defeat him – again – in the general election.
The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.
