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Friday, April 28, 2023

"Let the Voters Decide"

In discussing Section Three of the Fourteenth Amendment, I sometimes get this question: "Why not just let the voters decide if someone should hold office?" I have a draft paper that discusses this issue in some detail, but let me make some brief points here.

  1. Voters decide among eligible candidates. They don't decide who is an eligible candidate.
  2. A Section Three violation (if there is one) is not technical or de minimus. For example, suppose a candidate needs to submit a certain number of signatures to get on the ballot. She falls two or three short or there are a couple that were filled out incorrectly. An election official could well say that this relatively minor error should not prevent the voters from having another choice. But that argument does not work for Section Three.
  3. Congress is free to grant Section Three amnesty to a candidate to let the voters decide. Neither election officials nor the courts have that power.
  4. The point of Section Three is that certain people cannot hold office even if voters choose them. Thus, "let the voters decide" is tantamount to nullifying Section Three. People could not vote for Jefferson Davis after 1868 no matter how much they wanted him.

In a separate post, I'll take up the argument that disqualifying Donald Trump from the presidential ballot would be "bad for America."

Posted by Gerard Magliocca on April 28, 2023 at 11:12 AM | Permalink


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