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January 23, 2024

Will ‘Lawfare’ Take Trump Off the Ballot?

The scenarios don’t work, and lawfare only breeds strife.

The biggest threat to the Constitution in 2024 is the “lawfare” being waged against Donald Trump — and the Supreme Court is as much its target as Trump is.

Consider attempts in Colorado, Maine and elsewhere to ban Trump from the ballot.

The architects of these efforts are counting on most Americans not knowing how presidential primaries and general elections actually work.

What happens if a blue-state Supreme Court or Democratic secretary of state rules that Trump isn’t eligible to be president?

If the question stayed at the state level, very little would change.

This is because voters don’t directly pick either a party’s nominee or a president.

Primaries and caucuses are only first steps in a process — which differs from state to state — that ultimately selects delegates to the party’s national convention.

Those delegates, in turn, pick the nominee.

Colorado requires delegates to support the candidate they’re pledged to, even if that candidate drops out of the race.

But a candidate who withdraws can free up his or her delegates with a simple letter, and after the first round of voting at the convention, delegates are often automatically unbound.

If Colorado kept Trump off the ballot, but he needed the state’s delegates — an unlikely scenario at this point — he could get them by having his voters throw their support behind one of the candidates who’s on the ballot but has already dropped out and endorsed Trump: Ron DeSantis or Vivek Ramaswamy would do.

Yes, it would be messy, but if the GOP is determined to nominate Trump, a handful of blue states won’t stop him with ballot bans.

The general election is also indirect.

When voters choose a president and vice president, they’re actually voting for a slate of electors pledged to those candidates.

Disqualifying Trump from the ballot wouldn’t disqualify the electors pledged to him and his running mate — and the Republican candidate for vice president would appear on the ballot even if Trump didn’t.

In blue or battleground states, it’s even conceivable that this could help the Republican ticket, if moderate voters turned off by Trump found it easier to vote GOP with only his running mate on the ballot.

The same slate of electors, however, represents both the presidential and VP nominees; Trump would get the electors pledged to the ticket even if his name wasn’t on voters’ ballots.

A state that banned Trump might try to disqualify his electors, but this would risk a constitutional crisis on both the state and federal levels.

Colorado, for example, has a law that replaces “faithless electors” who don’t vote for the winner of the state’s popular election — but what happens if the Republican ticket wins, yet there’s no presidential candidate listed on it?

Replacing Republican electors with Democrat electors would hardly make sense if the GOP ticket, with only a vice president listed, won the popular contest.

With so many different rules in different states, the results would be wide-open to challenge when Congress counts the Electoral College vote.

Savor the irony: If Trump won the Electoral College vote despite state attempts to ban him, Vice President Kamala Harris and congressional Democrats would be in the same position Mike Pence and the Republicans were in on Jan. 6, 2021.

Would Harris count the votes from Trump electors?

Yet it won’t come to that — because even Democrats pushing to ban Trump know that the states will be preempted by the U.S. Supreme Court.

In fact, that’s the trap they’ve laid.

SCOTUS is set to take up the Colorado case, and Democrats want to embarrass the Republican-majority court.

If the justices rule against Trump, they’ll throw the election and the Republican Party into turmoil.

Trump and his supporters, red-state governments, and perhaps the institutional GOP as a whole might defy the ruling, putting Trump on ballots anyway and opening a deeper constitutional crisis.

But it’s more likely the justices will decide in Trump’s favor, in which case Democrats will be the ones questioning the court’s legitimacy.

And that’s the strategy: to get another decision that juices Democratic enthusiasm and turnout the way the Dobbs abortion ruling did.

Trump’s reputation will be further damaged even if he prevails, and if he does, Democrats will harness their voters’ fury at the Republican-majority Supreme Court.

Lawfare subverts democracy by taking decision-making away from voters and giving it to the courts, while ensuring that half the country — one party or the other — is outraged by the judiciary’s conclusions.

Democrats have led their supporters to entertain a fantasy of winning by disqualifying Trump rather than beating him, but the scenarios don’t work, and lawfare only breeds strife.

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