Everyone Should Be Able to Vote for Who They Want for President
But let's have some consistency on what that means for our political system
Prosecutors and judges should not be able to interfere in the political process by denying people the ability to vote for who they want for President.
If you agree with that sentence, I’m glad you have joined the ranks of those who want to end felon disenfranchisement and restore the right to vote for the 4.6 million people denied that right due to a criminal conviction. Oh yeah, and along with the voting rights of those 4.6 million people not being violated, Donald Trump shouldn’t be removed from the ballot and his supporters should be able to vote for him.
Just because the 13th Amendment and 14th Amendment allow voting rights to be violated doesn’t mean it is good for our democracy to do so. In a democracy, voters are supposed to pick their leaders; political leaders are not supposed to pick who gets to vote and who doesn’t and who those voters are allowed to vote for.
Racist History of Felon Disenfranchisement
The history of felon disenfranchisement used as a key part of Jim Crow, where arbitrary arrests would impose new forms of slavery in the form of convict labor but also permanently deny the vote to large swathes of the population, a story told by among others in Douglas Blackmon’s Slavery by Another Name.
This is hardly ancient history given that 5% of the African American population is disenfranchised by such laws and one in 10 African American adults are denied the vote in eight states: Alabama, Arizona, Florida, Kentucky, Mississippi, South Dakota, Tennessee, and Virginia. Texas resident Crystal Mason was given a five-year prison sentence in 2016 for casting a provisional ballot while on supervised release for a federal conviction (although she has a pending appeal based on the fact she thought she was eligible to vote and her vote was never actually counted).
What is appalling is that we as a country implemented a racist system of mass incarceration where those most impacted by that policy lost the right to challenge that policy at the ballot box - a precedent for the oppression of all sorts of criminal laws being used to disenfranchise most likely to challenge the politicians who implemented those policies.
The Anti-Democratic History of Barring Candidates from Office for “Sedition” or “Insurrection”
Denying people the right to vote for the candidate of their choice can be just as much a threat to the right to vote, since if advocating or challenging certain policies can be defined as “sedition” or “insurrection”, incumbent politicians can easily make elections meaningless by barring opponents from the ballot or being able to serve in office.
Between 1872 - when the U.S. Congress had second thoughts on the debarment provision of the 14th Amendment and issued a general amnesty for all but top leaders of the Confederacy - and the January 6 assault on the Capitol, only one person was barred from office under the 14th Amendment.
That person was Victor Berger, the first Socialist Party member elected to the U.S. Congress in 1918. Because he was facing indictment under the wartime Espionage Act for vocally opposing the U.S. entry into World War I, the U.S. Congress cited to this indictment in voting to refuse to seat him for office.
Berger’s conviction was overturned in 1921 by the U.S. Supreme Court, largely on the side issue that the trial judge in the case had made public statements that he was prejudiced against Germans so should have recused himself from the case. While seemingly a technicality, this decision in 1921 reflected a more general change in public opinion that the Red Scare that had climaxed in 1918 and 1919 and sought to destroy political opponents of the war and radicals of all kinds was endangering the political system.
Berger would be subsequently elected and served in Congress and Socialist Party Leader Eugene Debs, who was serving time in U.S. prison for his conviction under the Espionage Act, would be allowed on the ballot in 1920 to run for President - and would receive over 1 million votes nationwide. The next year, President Warren Harding would pardon Debs and release him from prison.
The Debs precedent is the proper one for Trump. Convict him on all the myriad crimes he has committed but leave his voters free to support him on the ballot.
The nation would have gone down a darker road if candidates like Victor Berger and others deemed to be subversive or having “given aid or comfort to the enemies” (another phrase allowing debarment from office under the 14th Amendment) had been routinely barred from the ballot and their voters denied the right to choose their choice of candidates.
Around the world, we see nations ranging from China to Iran where elections are made a complete mockery because official government agencies make lists of which candidates may run and which may not. Even in functioning democracies, we have seen elites abuse rules barring candidates from running for office, a recent example being the 2018 Brazilian Presidential election when the leading candidate, Lula da Silva, was removed from the ballot based on trumped-up criminal charges - charges that were overturned by the Brazilian Supreme Court three years later. In the meantime, the Trump-like Jair Bolsonaro, was able to be elected and impose his right-wing regime on the nation for four years until Lula defeated him in 2022.
History shows there is far more danger in letting elite institutions choose who gets to run for office versus letting voters weed out bad or dangerous candidates on their own.
Side Note: How the Supreme Court Should Rule on the Colorado Debarment Case
That said, the simplest resolution for the Supreme Court in the Colorado debarment case is to let Trump’s removal from the ballot stand, particularly since this is a Presidential race. Under the Constitution, states can pick Electors however they wish. The Colorado legislature could just pick Electors pledged to Joe Biden and skip elections altogether, so given that, if the state chooses to bar Trump-pledged Electors, that’s kind of up to them in our stupid Electoral College system.
The Supreme Court doesn’t even have to rule on the meaning of the insurrection clause of the 14th Amendment, but just leave it to states to apply it or any other criterion they wish in setting up their election rules as long as they don’t directly violate federal law.
Every decision to bar a candidate from office under the 14th Amendment has been made based on state laws or by elected officials in Congress refusing to seat a candidate (see Victor Berger), so it is a reasonable option for the Supreme Court not to try to rule on whether Trump was involved in insurrection or not, but leave that to U.S. criminal courts and to states to make their own determinations.
Especially since none of these state debarments are likely to matter, since they will likely only be in states where Trump is likely to lose in any case. And if Trump is going to win Colorado or Maine, he will win in enough other states that it won’t matter- all the more reason for federal courts to kick the constitutional can down the road.
Let People Vote
I think states barring Trump from the ballot are making a mistake but, more generally, progressives should be dedicated to the proposition that people should be able to vote - and vote for the candidate they want, not the candidates acceptable to judges or other officials.
On the other hand, conservatives screaming about their rights being violated because Trump isn’t allowed on the ballot because of his actions on January 6th are hypocrites if they also support the disenfranchisement of 4.6 million people across the nation based on their past actions.
Criminal punishments should never be a tool to bias or manipulate the outcomes of future elections.
Let people vote- and vote for who they want in office.