PD Editorial: Supreme Court leaves voters to judge Trump

The presidential election came into sharper focus this week. Barring an unexpected, seismic event, Joe Biden and Donald Trump will be the major party nominees.

On Monday, the U.S. Supreme Court unanimously ruled that states may not remove Trump from the ballot based on Section 3 of the 14th Amendment to the U.S. Constitution. That provision, adopted after the Civil War, bans insurrectionists who had previously taken an oath to uphold the Constitution from holding certain state or federal offices. The Reconstruction era idea was to keep former Confederates out of office lest they cause all manner of trouble in a recovering republic.

A Colorado court ruled that Section 3 applied to Trump for his actions leading up to the Jan. 6, 2021, riot at the U.S. Capitol. Similar challenges were underway in other states. In California, a state lawmaker introduced a bill to kick Trump off the ballot after the secretary of state declined to do it.

Now those efforts are moot. The Supreme Court’s three liberal justices joined the six conservatives in concluding that Trump’s name should remain on the ballot.

It was the right outcome to avoid creating a chaotic system of states kicking presidential candidates off the ballot. As Gov. Gavin Newsom noted, “In California, we defeat candidates at the polls.” It’s better that voters repudiate all that Trump stands for and has done than partisans deny voters a choice.

Yet the unanimous court ruling masks disagreement. Four justices — the three liberals and conservative Justice Amy Coney Barrett — criticized the majority for going beyond just putting Trump back on the ballot. The five other conservatives also declared that only Congress may bar a presidential candidate from the ballot — not the courts, not other potential findings of insurrection. That is the sort of legislating from the bench that conservatives usually criticize.

Americans should note what the justices did not say in their decision. They pointedly did not exonerate the former president of engaging in insurrection. That means Congress could still remove Trump from the ballot if it concludes he did. Not that Congress would do so given the current partisan political environment and a Republican majority in the House of Representatives.

Results of Tuesday’s Super Tuesday primaries in more than a dozen states are still rolling in, but it’s a near certainty that Trump and Biden will be the major party nominees. The choice that few Americans want to see on the ballot is closer to becoming locked in.

The Supreme Court can help voters by moving expeditiously on another Trump case. The court recently agreed to hear an appeal of whether the presidency grants Trump immunity from prosecution for acts leading up to Jan. 6. A federal criminal trial is on hold pending that review. If the court dawdles, the trial might not conclude — or even begin — until after the November election, and voters would lack a critical piece of information: whether one of the leading candidates for president is guilty of multiple felonies.

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