Donald Trump puts the United States electoral system on the ropes (again)

Attempts to stop him in court have ignited the debate over whether preventing the most popular Republican candidate from running for office could end up damaging democracy

Donald Trump
Donald Trump in Waterloo (Iowa) at a Republican Party electoral event on December 19.SCOTT OLSON (Getty Images via AFP)
Iker Seisdedos

Even for someone as comfortable with shock as Donald Trump, his last few weeks have felt a lot like a rollercoaster ride. He has been compared to Adolf Hitler for the xenophobic statements he made; he has threatened to retaliate on those who are now holding him accountable for his actions in the White House; he has said that he will be “dictator on day one” if he resumes command; and he is ending the year at the center of an unprecedented legal battle to prevent him from running in the presidential elections next November. This has opened an interesting debate about democracy in the United states.

It is a discussion about who should decide — the judges or the voters — whether the candidate best positioned to win the Republican Party nomination should be allowed to run for office, given his track record. In the presidential election, Trump could even beat his more than likely opponent. Joe Biden’s popularity is not rising due, among other reasons, to his advanced age and the war in Gaza.

The idea of a second round of Trumpism in the White House has managed, at least, to bring the two Americas into agreement. It has invoked the dangers looming over democracy in 2024. Like 1776, 1861, 1968, 2001, or 2020, the year will be recorded in the annals of American history. For one side, four more years of Trump would push the country toward autocracy. For the other, the real risk is in the attempts to stop him in the courts, which would respond to an illiberal political persecution with the entire arsenal of the state apparatus: a dirty trick to defeat him in the face of a rival’s inability to do so at the polls.

The tycoon closes his difficult year with the courts with more legal attacks; four cases so far, in which he is accused of 91 criminal indictments: for electoral subversion, for his role in the attack on the Capitol, for his handling of classified material, and for hush money payments to a porn actress. The last two have triggered the disqualification clause contained in Section 3 of the Fourteenth Amendment, which was written after the Civil War with the rebels of the Confederacy in mind and prevents anyone who has participated in an insurrection, after swearing allegiance to the Constitution, from running for public office.

It is a legal fight that is similar to the fight for the presidency: it is fought state by state. For now, Maine and Colorado have given two good interpretations. On the one hand, what Trump did (and still does) by refusing to accept the result at the polls in 2020 and his encouragment of the assault on the Capitol on January 6, 2021, count as an act of insurrection and are not protected by freedom of expression. On the other hand, what that obscure paragraph of the rarely invoked founding text says can be applied to the office of the president, although it is not expressly cited among the pile of elected positions that it does mention.

Half a dozen states (the latest being California) have already rejected this legal theory and there are at least 32 others in which cases have been initiated based on this interpretation of the Constitution. The ball is now in the court of the Supreme Court with its conservative supermajority, three of which were appointed by Trump. If they accept the case, they can decide on both questions (the insurrection, and whether the clause affects presidents), or stay only on the practical side and return the candidate’s name to the ballots. What those nine justices decide will have an effect throughout the country and will pave or cut off Trump’s path to the White House. There is some urgency: The primary process begins in mid-January with the Iowa caucuses.

Those who defend removing him from those primaries argue that no one is above the law, but are faced with the certainty that these attacks could end up having the opposite effect to what is desired: helping Trump win votes. No one like the Secretary of State of Maine — Democrat Shenna Bellows, who wrote in her argument that “democracy is sacred” — has embodied that fight more in recent days.

Betrayal and protection

The same recourse to the sacred ideal of democracy serves those who think otherwise — and there are plenty of them — and not only from the side of the magnate’s supporters. They say it would be better to let the voters speak and remove Trump from the electoral race, than for a handful of judges to do so. And, of course, it would be easier, they add, if there was already a conviction proving that he committed the crime of insurrection.

For Yale University jurisprudence professor Samuel Moyn, there is a danger in resorting to the disqualification clause: “Turning what should be a national referendum on the future of the country into a spectacle in which judges will interpret a legal text from the past. It may favor Democrats in the short term,” Moyn believes, but in reality it would only be “postponing the need to govern by legitimate means, rather than by legal subterfuge.”

Some, like conservative analyst David Frum, Trump’s longtime antagonist, also point out the irony that “the president who betrayed democracy is now asking for its protection.” “Perhaps prudence would recommend leaving Trump’s disgraced name on the primary and general election ballots. But remember that old joke about the man who murdered his parents and then begged for mercy because he was an orphan? Another could be told, about a former president who destroyed democracy when he was in power and then demanded the protection of democracy so he could have another opportunity to destroy it,” Frum wrote on The Atlantic magazine’s website after Maine’s decision was made known.

The latest issue of the publication is a monograph on all the ways and areas in which Trump returning to the White House could cause this damage. To highlight the drama of the alarm signals contained within, the creative director decided to place the index on the red cover. It paid homage to another solemn occasion in which the editors resorted to that idea: August 1939, a month before the start of World War II.

The list is long: electing him president would represent a threat to immigration, the climate, journalism, science, the relationship with China, the rise of extremism on both sides, disinformation, the Department of Justice and much more. “In his first term, Trump’s corruption and brutality were mitigated by his ignorance and laziness. In a second, Trump would arrive with a much better understanding of the system’s vulnerabilities [...] and a much more focused agenda of retaliation against his adversaries and impunity for himself,” Frum writes.

For Trump, who said goodbye to 2022 looking into the abyss of political irrelevance and is heading into 2024 sitting on his pending accounts with justice and inflated with popularity, playing the victim has served to connect with a loyal base of followers who consider him little less than a martyr. In recent weeks, he has raised the tone with an already openly revanchist speech.

The climax came last Tuesday, when he boasted of his rhetoric by sharing on his own Truth Social network account, a concept cloud published by the British Daily Mail newspaper. It consisted of words used by a thousand potential voters, to whom a pollster asked for a concept that summarizes what they expect from a second term of the two candidates who aspire to the White House. “Revenge”, “power”, “economy,” and “dictatorship” were the terms highlighted in large print in the Trump swarm. In Biden’s?: “Nothing,” “economy,” “democracy,” and “peace.”

That the former president appropriated a list that anyone else would have preferred to forget is a new demonstration that if Trump is anything, it is not “any other” politician, but someone capable of emerging unscathed from statements like those he recently made on Fox News. He said he would be a “dictator on day one” to “close the border with Mexico,” and to resume “oil extraction.” And then democracy would return. That democracy that has been put on the ropes several times since its emergence on the political scene in 2016, as a candidate, as president, and as former president.

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