Nationally, state supreme courts and appointed bureaucrats are deciding who should and who should not be on primary ballots. The target, the person they seek to deny everyone the opportunity to vote for or against is, of course, Donald Trump.
In Pennsylvania, a failed congressional candidate has introduced a lawsuit that aims to keep Rep. Scott Perry off this year’s ballot because he questioned the validity of the 2020 presidential election. Again, if successful, this legal action will deny the people of Scott’s district the right to choose their representative — or the right to throw Scott out of office.
Legal actions always come down to interpreting the law, which often comes down to interpreting the meaning of a few words, either the meaning of these words now or when they were written. The words of concern in these battles over who we may be allowed, or not, to vote for are “engaged” and “insurrection,” and how they are used in Amendment 14, Section 3 of the US Constitution, passed and ratified after the Civil War.
The amendment states that a person who engaged in insurrection against the United States may not hold elected office. Opponents of Trump, Scott and others have complained that the language just says engaged in insurrection, even if they were not charged with or convicted of insurrection. They maintain that, obviously as they see it, these men engaged in insurrection and must be stricken from the ballot. Complicating this is that there’s another large group of voters who believe that, obviously as they see it, these men did not engage in insurrection at all. To make it all more difficult, the Constitution doesn’t define insurrection. As for what Trump and Scott are accused of, no court has either.
So how do we choose who should or should not hold office? How about an election? How about we act like a democracy, go to the polls, and vote for our best representative? How about we stop trying to thwart this process through the courts?
There’s a dark cynicism here. One that whispers that citizens are incapable of making good choices in elections. One that seeks not only to discredit, but to invalidate voters’ rights to freely elect the candidate they think will best represent them and their interests. An anti-democratic force that has long used the courts to determine policy on tough issues has taken the leap to using the courts to determine the outcome of elections before they even happen.
This has been a long time coming. In difficult issues like abortion and gun control, Congress avoids any hope of crafting legislation through compromise and just punts the issues to the Supreme Court. We choose representatives to champion our points of view and we send them into government to legislate. Increasingly, they sit on their hands, immovable and deadlocked. Nothing gets done until the courts take it up.
It should be no surprise that the courts have become politicized. But any careful review of each court’s decisions will reveal that courts are a lot more even-handed and nonpartisan than most partisans will have you believe. But partisans have our ear and prick at our emotions and exacerbate incendiary issues like abortion, gun control, or election integrity. They get us so riled up that justices’ homes have been attacked and lives have been threatened. No, the Constitution doesn’t define insurrection, but sending people off after a judge in order to disqualify the one reasonable branch of government left might just fit the bill.
So might what happened on January 6, 2021. Or maybe not. What we do know is that no court has decided whether or not this is so. At least not yet. Why on earth would someone use the court to decide who gets to be on what ballot based on their partisan definition of “engaged in insurrection” or the terrifying possibility that a candidate they oppose might actually win? Simple, to subvert democracy. To invalidate an election before it even happens. That’s an altogether different kind of insurrection, isn’t it?
George Hofmann writes the newsletter Practicing Mental Illness. He lives in Philadelphia with his wife, their daughter, too much coffee, and a dog.