Former President Donald Trump arrives on stage to speak at the Turning Point Action conference in West Palm Beach, Fla., on July 15, 2023. (Joe Raedle/Getty Images)
This is so funny. California Democrats are hatching a plot to keep former President Donald Trump off the state’s ballot next year. But it could backfire and guarantee he wins.
, “California Dems consider unique approach to getting Trump off ballot: California lawmakers are urging AG Bonta to expedite court action against former president.”
The story: “Nine California lawmakers wrote a letter to Attorney General Rob Bonta over the weekend, arguing that Trump isn’t eligible to be on the ballot for inciting an insurrection when a mob of his supporters attacked the U.S. Capitol on Jan. 6, 2021.
“The move, which comes amid several lawsuits to keep Trump off state ballots across
the country, is unique because Bonta could use his standing as California’s top law enforcement officer to expedite a state court ruling on the matter. Should the effort succeed, California could be the first state to bump Trump off its ballot, even if the ruling is ultimately overturned.”
This is being debated around the country based on the 14th Amendment’s Section 3, which reads (please excuse a couple of medium-length quotes for context): “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Trump’s actions on Jan. 6, 2021 supposedly made him the leader of an “insurrection.” The best argument against that was advanced by former U.S. Attorney General Michael Mukasey in the Wall Street Journal
: “The use of the term ‘officer of the United States’ in other constitutional provisions shows that it refers only to appointed officials, not to elected ones. In U.S. v. Mouat (1888), the Supreme Court ruled that ‘unless a person in the service of the government ... holds his place by virtue of an appointment ... he is not, strictly speaking, an officer of the United States.’ Chief Justice John Roberts reiterated the point in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010): ‘The people do not vote for the “Officers of the United States.”’”
The California State Capitol building in Sacramento, Calif., on April 18, 2022. (John Fredricks/The Epoch Times)
What if They Can Disqualify Trump?
Now, here’s where it gets interesting. Hypothetically, what if Mr. Mukasey’s argument doesn’t hold up in the courts? Then California and other states’ attorneys general and governors, or lawsuits by political groups, could throw Mr. Trump off the ballot. Especially critical would be the swing states with Democratic governors: Wisconsin Gov. Tony Evers, Pennsylvania Gov. Josh Shapiro, Michigan Gov. Gretchen Whitmer, Kentucky Gov. Andy Beshear, and North Carolina Gov. Roy Cooper. Or Fulton County (Atlanta) District Attorney Fani Willis, already prosecuting Trump for allegedly interfering in the 2020 election, could do it.
But then, Republicans could do it in their swing states, throwing President Joe Biden off the ballot. They could say his alleged bribes from Communist China disqualify him under the 14th amendment’s Section 3 wording for having “given aid or comfort to the enemies thereof.” Republicans governors invoking that clause could include Glenn Youngkin of Virginia, Brian Kemp of Georgia, Kim Reynolds of Iowa, Joe Lombardo of Nevada, and Chris Sununu of New Hampshire.
It would be what in military parlance is called Mutual Assured Destruction
. If that happened, neither Mr. Trump nor Mr. Biden would reach the 270 electoral votes needed to win the presidency in the Electoral College. Then what?
This combination of pictures created on October 22, 2020 shows President Donald Trump, left, and Democratic presidential candidate Joe Biden during the final presidential debate at Belmont University in Nashville, Tenn., on Oct. 22, 2020. (Brendan Smialowski and Jim Watson/AFP via Getty Images)
Then we would have the fourth of what’s called a Contingent Election
, although the phrase itself isn’t in the Constitution. It means the matter is decided by the House of Representatives (or the Senate for vice presidents). There have been three so far: Thomas Jefferson beat Aaron Burr in 1800; John Quincy Adams beat Andrew Jackson in 1825. And in 1837 the vice presidential election was given to Richard Mentor Johnson over Francis Granger.
Under a Contingent Election in the House, all 435 members don’t get to vote. Rather, each state delegation gets one vote—50 votes total.
On Sept. 18 Canadian political writer Stephen Marche wrote an article
for the left-wing Guardian titled, “Here’s the scary way Trump could win without the electoral or popular vote: In a ‘contingent election,’ he could lose the popular vote, electoral college and all his legal cases and still end up the legal US president.”
He calculated: “State delegations in the House would favor Republicans as a matter of course. In the struggle for congressional delegates, Republicans would have 19 safe House delegations and the Democrats would have 14, as it stands, with more states leaning Republican than Democrat.”
So California, by knocking Mr. Trump off the ballot, could guarantee he becomes president. Again, none of this is likely to happen. If any state tries to keep him off the ballot, the courts almost certainly would put him back on, possibly reasoning along the lines Mr. Mukasey detailed.
There’s one thing this whole escapade teaches us: A large number of California’s politicians hold in contempt the Constitution, democracy, and the people of the state they claim to represent. In this train-wreck of a state, with housing, homelessness, drug addiction, schooling, budget, and countless other problems festering—don’t they have anything better to do?