Strike two for Trump!

December 29, 2023

Two major stories dominated the news on Thursday—both relating to GOP presidential candidates. Both stories illustrate the sorry state of the Republican Party. Let’s take a look.

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Maine Secretary of State bars Trump from presidential primary ballot.

What happened.

The Maine Secretary of State issued a ruling that effectively barred Trump from the state’s presidential primary ballot—ruling that Trump was disqualified under Section 3 of the 14th Amendment. A press release summarizing the procedural background and gist of the ruling is here: Maine Secretary of State Decision in Challenge to Trump Presidential Primary Petitions

In short, three Maine voters objected to Trump's qualification to appear on the Maine presidential primary ballot. State law obligated Maine’s Secretary of State, Shenna Bellows, to rule on the objections. Bellows held a hearing on December 15 on the objections. She upheld two of the objections in a written opinion that invalidated Trump’s petition to appear on the primary ballot. The written ruling is here: Decision in Challenge to Trump Presidential Primary Petitions.pdf (maine.gov).

In barring Trump from the Maine ballot, Secretary of State Bellows stated as follows:

“I conclude… that the record establishes that Mr. Trump, over the course of several months and culminating on January 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power. 

I likewise conclude that Mr. Trump was aware of the likelihood for violence and at least initially supported its use given he both encouraged it with incendiary rhetoric and took no timely action to stop it.

Mr. Trump’s occasional requests that rioters be peaceful and support law enforcement do not immunize his actions.  A brief call to obey the law does not erase conduct over the course of months, culminating in his speech on the Ellipse. 

The weight of the evidence makes clear that Mr. Trump was aware of the tinder laid by his multi-month effort to delegitimize a democratic election, and then chose to light a match.

Trump can appeal to the Superior Court in Maine. Bellows stayed the effectiveness of her ruling until a Maine Superior Court rules on any appeal or the time for appeal expires (in five days).

Why it matters.

The Maine presidential primary is set for March 5, 2024 (“Super Tuesday”). Trump must first appeal to courts in Maine before seeking review in the US Supreme Court—although I would not be surprised if Trump sought direct relief in the US Supreme Court (even though such a move would be improper). However, whenever the matter makes its way to the US Supreme Court, it must act quickly if it intends to issue a ruling (or injunctive relief) before Maine finalizes its presidential primary ballot.

The ruling in Maine increases the likelihood that the Supreme Court will grant review of the Colorado Supreme Court decision and use that case as a vehicle for issuing a ruling that will set a standard for disqualification under Section 3 for all state primaries.

Most importantly, the ruling further complicates Trump's candidacy. But, it may also complicate Joe Biden’s reelection bid if a GOP Secretary of State issues a retaliatory ruling finding that Joe Biden “engaged in insurrection” on a pretextual ground.

Like it or not, the Supreme Court will be forced to take some position—either procedural or substantive—that will resolve the issue of Trump's disqualification under Section 3 of the 14th Amendment.

A comment on the “enabling legislation” provision of the 14th Amendment.

In yesterday’s newsletter, I referred to “enabling legislation” under the 14th Amendment but failed to cite the source of that reference. Section 5 of the 14th Amendment provides as follows:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The “enabling legislation” provision in Section 5 was addressed at length in the dissent in the Colorado Supreme Court decision. Some courts have ruled that the absence of congressional legislation providing for a uniform standard for applying Section 3 precludes private enforcement of the disqualification clause. But, as a matter of historical precedent, members of the Confederate army were disqualified from federal office despite the absence of enabling legislation.

We should expect the US Supreme Court to address the question of enabling legislation in any opinion it issues. But for “originalist” and “textualist” justices, it is clear that the Constitution does not require Congress to pass enabling legislation as a precondition to the effectiveness of the 14th Amendment. Congress has the power to pass such legislation, but the failure to do so does not eliminate the 14th Amendment from the Constitution by rendering it unenforceable.

What happens next?

The situation is volatile, uncertain, and complicated. Whatever happens, Trump is on the defensive because he engaged in insurrection. Joe Biden did not—no matter what reactionary GOP Secretaries of State may say.

The rulings in Colorado and Maine are reminders that we have a long way to go before the November elections. Although legal developments relating to Trump are important, we cannot allow ourselves to be distracted.

Whatever happens, defeating Trump (or his surrogate) at the ballot box will be an indispensable step in eventually extinguishing the madness of MAGA extremism. Let the legal developments unfold as you work to achieve electoral victory!

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Why Nikki Haley’s answer omitting slavery as a cause of the Civil War matters.

What happened.

At a campaign event in New Hampshire, a member of the audience asked Nikki Haley to identify the causes of the Civil War. She gave an evasive answer that omitted slavery as a cause of the Civil War. She said,

I think the cause of the Civil War was basically how government was going to run. The freedoms and what people could and couldn’t do.

Haley was immediately attacked, mocked, and condemned for failing to identify slavery as a cause of the Civil War. During a Thursday morning interview, she attempted to walk back her prior answer with an equally offensive and unconvincing answer. As described in Forbes,

During the Thursday morning interview, she said the goal of the Civil War was to ensure each person has their freedom, including freedom of speech, freedom of religion and the “freedom to do and be anything they want to be without anyone or government getting in the way . . . Yes, I know it was about slavery. I’m from the South, of course I know it’s about slavery.”

Why it matters.

Haley has a history of minimizing or dismissing the role of slavery in the Civil War. The incident on Wednesday is merely the latest episode that reveals her willingness to cater to white nationalists in pursuit of elected office. As former New Jersey Governor Chris Christie said,

She's smart and she knows better. And she didn't say it because she's a racist. Because she's not. I know her well and I don't believe Nikki has a racist bone in her body . . . the reason she did it is just as bad, if not worse, and should make everybody concerned about her candidacy. She did it because she's unwilling to offend anyone by telling the truth.

If she is unwilling to stand up and say that slavery is what caused the Civil War because she's afraid of offending constituents in some other part of the country, if she's afraid to say that Donald Trump is unfit because she's afraid of offending people who support Donald Trump, . . .

What's going to happen when she has to stand up against forces in our own party who want to drag this country deeper and deeper into anger and division and exhaustion?”

Christie is right that Nikki Haley is afraid to tell the truth. But she is also a reactionary conservative posing as a moderate. As the NYTimes noted, her failure to include slavery threatens to destroy her image as someone attractive to moderate Republicans and independents. Per the Times,

Ms. Haley’s appeal as a candidate of moderation is mixed. As governor of South Carolina, she signed some of the harshest immigration and anti-abortion laws in the country at the time, as well as a stringent voter identification law that required photo ID at the ballot box.

But Haley’s omission of slavery was not merely an act of cowardice on her part. She was promoting a dangerous revisionist history of the Civil War that has taken root in the former Confederate states. Haley is promoting the myth of the “Lost Cause” of the South—a romanticized transformation of the brutal practice of slavery into (in the words of Haley) “traditions that are noble — traditions of history, of heritage, and of ancestry.”

I highly recommend a thoughtful and detailed discussion of Haley’s dangerous answer by Joshua Zeitz in Politico, Opinion | Why Was It So Hard for Nikki Haley to Say "Slavery"? Civil War History Has the Answer.

Zeitz writes,

The Lost Cause mythology was more than bad history. It provided the intellectual justification for Jim Crow — not just in the former Confederacy, but everywhere systemic racism denied Black citizens equal citizenship and economic rights. [¶]

With GOP presidential candidates waffling on the Civil War, rejecting history curricula in their states and launching political fusillades against “woke” culture, it remains for the rest of us to reaffirm the wisdom of Frederick Douglass, who in the last years of his life stated:

“Death has no power to change moral qualities. What was bad before the war, and during the war, has not been made good since the war. … Whatever else I may forget, I shall never forget the difference between those who fought for liberty and those who fought for slavery.”

Nikki Haley wants to forget “the difference between those who fought for liberty and those who fought for slavery.” In pursuit of the presidency, she recasts “fighting for slavery” as “noble traditions of history, heritage, and ancestry.” Shame on her.

Haley is telling us who she is. We should believe her.

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Concluding Thoughts.

Democrats are nervous about 2024. But the leading GOP candidate has been disqualified from ballots twice because he engaged in insurrection and leads the news cycle most days because he is advancing ridiculous defenses in three criminal trials and a civil trial for fraud. And the second-place GOP candidate just revealed her willingness to court white nationalists and racists (again).

While we cannot rely on Republicans to defeat themselves, we should be realistic in assessing the relative challenges faced by both candidates. Does Joe Biden face challenges? Sure! But any objective observer would rather be supporting Joe Biden than Donald Trump.

We are not entitled to a stress-free election in 2024, but we should try to keep our anxiety in check by taking a step back to consider the challenges faced by each candidate. If we do that, we have plenty of reason for optimism heading into 2024.

Talk to you tomorrow!