Raising doubts about the legitimacy of elections

George Skelton, Tribune News Service

Even a despicable menace like Donald Trump deserves a fair shake. He shouldn’t be punished before being convicted. In America, everyone’s innocent until proved guilty, right? At least that’s what was drummed into me growing up. Many people — mainly Democrats and left-leaners — want to deny Trump access to presidential primary ballots under Section 3 of the 14th Amendment. Written right after the Civil War, Section 3 decrees that “no person shall … hold any office, civil or military, under the United States or under any state” who took an oath “to support the Constitution” and “engaged in insurrection or rebellion” or gave “aid or comfort to the enemies.”

That made perfect sense. If you fought to cripple the nation after pledging to protect it, once you’ve failed you shouldn’t be allowed to help lead the country.

Now there’s the movement to prevent former President Donald Trump from running again for the Oval Office because he allegedly inspired — “engaged in” — insurrection by armed thugs and wackos. After Trump’s pep talk, they stormed the nation’s Capitol on Jan. 6, 2021, and tried to prevent Congress’ certification of President Biden’s election victory over the sour loser who lied about massive voter fraud. Give credit to Gov. Gavin Newsom and Secretary of State Shirley Weber, California’s top election official. These two liberal Democrats haven’t joined the chorus to deny Trump ballot access. They want nothing to do with it. “There is no doubt that Donald Trump is a threat to our liberties and even to our democracy, but in California we defeat candidates we don’t like at the polls,” Newsom said in his only public comment on the matter. “Everything else is a political distraction.” Weber put Trump on California’s March 5 Republican primary ballot despite pressure from Democratic Lt. Gov. Eleni Kounalakis to boot him. “I must place the sanctity of these elections above partisan politics,” Weber said in a statement. “While we can agree that the attack on the Capitol and the former president’s conduct was abhorrent, there are complex legal issues surrounding this matter.” She added that Trump’s conduct “tainted and continues to sow the public’s mistrust in government and the legitimacy of elections, so it is more critical than ever to safeguard elections in a way that transcends political divisions.” In my view, the nation — and certainly democracy — would be a lot better off if Trump were never allowed anywhere near power again. He’s dangerously divisive, shamelessly immoral and a terrible role model for the nation’s youth. At 77, the Republican front-runner may even be slipping in the head, yakking about becoming dictator for a day, taking revenge on opponents.

OK, but Trump has not been convicted of insurrection. No prosecutor has even charged him with that, although he has been indicted on nearly 100 other criminal counts. Where’s the due process that’s guaranteed by the Constitution? The right to a jury trial? To cross-examine prosecution witnesses? And what’s an “insurrection” anyway? We’d better have a solid definition before denying someone public office because he “engaged” in it.

But I’m just rambling on like the non-lawyer layman that I am, reflecting — I suspect — similar attitudes among numerous citizens. I contacted some legal scholars and asked where I was off base. They obliged. All of them told me that no conviction on an insurrection charge is apparently necessary to kick Trump off state ballots.

“There is nothing in Section 3 of the 14th Amendment that requires a conviction,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law. “I don’t read Section 3 as requiring that anyone be convicted,” said Jessica Levinson, who specialises in election law at Loyola Law School. Denying someone ballot access “is not a criminal punishment,” UCLA election law professor Richard Hasen said. “It’s not going to jail. It’s not paying a fine. It’s not being denied a right.” Running for office is not a “right,” I was told by the professors. It’s a “privilege.”

“That said,” Hasen added, “there’s a due process question.” Colorado’s Supreme Court kicked Trump off the primary ballot, ruling that he engaged in insurrection. First there was a five-day administrative hearing that the court said sufficed for due process. Trump disagreed and is appealing to the US Supreme Court. But Maine’s secretary of state removed Trump from the ballot on her own. Trump deserves some due process, Hasen said. “There are two separate questions,” the professor said. “Was he participating in an insurrection? How do we know?” Exactly. Who gets to decide?

The US Senate should have solved the Trump mess after the Capitol mob attack. The House impeached him for inciting an insurrection. But too many Republicans cowered on a Senate vote to convict. The vote fell 10 short of the two-thirds needed. A conviction would have barred Trump from ever holding office again. Weber told me she concluded it was outside her authority to keep Trump off California’s ballot. And if she did, the secretary of state added, “it would feed those folks” who already believe elections are rigged against Trump. “It would just stoke the fire.”