Disqualification Does Not Equal Disenfranchisement

Donald Trump's petition for certiorari and his merits brief both assert that the Colorado Supreme Court decision "disenfranchises" millions of voters. This claim is wrong but does explain why some people think that Trump must be convicted of a crime before Section Three can be applied to him.

Voters are not disenfranchised because they cannot vote for their favorite candidate. If that were true, then all state term limits would be disenfranchising voters. So would the 22nd Amendment. And so would any other constitutional qualifications for office. Nevertheless, a court ruling that a presidential candidate was disqualified after he won the election could be understood as disenfranchisement because there can be no do-over election for President. This is why the Court should reach the merits and decide this Section Three case now.

But if you understand Trump's disqualification as the disenfranchisement of his voters, then it makes sense to say that only a criminal conviction can bring about that result. Basically, voters only forfeit their suffrage right due to a felony conviction. Taking away a person's right to vote through a civil proceeding on a preponderance of the evidence standard would be deeply wrong and unlawful. The problem is that Donald Trump's privilege to be President is not the same as the individual right to vote for someone as President.