Will you be able to vote for former President Donald Trump next year in the state primary on March 5? Or, should he garner the Republican Party’s nomination, in the general election on Nov. 5?
Politico notes there’s a Dec. 28 deadline for Secretary of State Shirley Weber to certify ballot candidates for next year. I’ve interviewed her a couple of times and my sense is: She will keep him on the ballot. She seems to be a sensible public servant who won’t do anything crazy. But let’s review it.
The first issue is the March 5 primary. If Mr. Trump is not allowed on the ballot, it would come down to Florida Gov. Ron DeSantis vs. former South Carolina Gov. Nikki Haley, who also was ambassador to the United Nations. FiveThirtyEight’s Nov. 17 aggregate of polls for the California primary found: Mr. Trump 59.6 percent, Mr. DeSantis 11.4 percent, Ms. Haley 8.7 percent, and entrepreneur Vivek Ramaswamy 3.2 percent.
If Trump were not on the ballot, the votes could break either way, to Mr. DeSantis or Ms. Haley. The primary winner garners all 169 delegates to the Republican National Convention. That would be a huge haul and well could provide the margin of victory.
But if Mr. Trump were kept off the ballot, it would so outrage GOP voters in other states, he would get a massive boost that would likely negate any advantage the California winner, Mr. DeSantis or Ms. Haley, might enjoy.
What if Mr. Trump wins the primary, but then, through a court case, was kept from the Nov. 5 election? That also would enrage voters in other states. But for the actual vote, it really wouldn’t matter for the Nov. 5 national election result, because Mr. Trump won’t win here anyway. In 2016, he got just 31.5 percent of the vote to 61.5 percent for Hillary Clinton. In 2020, President Biden got 63.5 percent to Mr. Trump’s 34.3 percent.
What Really Happened Jan. 6?
The argument for keeping Mr. Trump off the ballot in California and elsewhere is he engaged in an “insurrection” on Jan. 6, 2021, when he held a rally in front of the U.S. Capitol building to encourage Congress not to certify Joe Biden as the winner of the election. Some of the protesters entered the Capitol building allegedly illegally, and a minority of them engaged in violence.
There are several problems with this argument. For one, House Speaker Mike Johnson (R-La.) has been releasing more of the police and other videos of the event that had been kept secret by then-Speaker Nancy Pelosi (D-California). For example, on Nov. 29 the Liberty Daily released a video under the headline, “Jan 6: New Footage Shows Capitol Police Throwing Multiple Explosive Flashbangs at Peaceful Crowd.”
Just before that, on Nov. 20 The Epoch Times reported, “Sen. Mike Lee (R-Utah) is calling for the Jan. 6 Committee to be investigated after House Speaker Mike Johnson (R-La.) announced the release of 40,000 hours of video from the Jan. 6 Capitol incident, with the Utah Republican accusing the panel of intentionally hiding the footage that could provide exculpatory evidence for some Jan. 6 prisoners. ...
“The footage shows the Capitol premises during the events of Jan. 6, 2021, when protesters upset by what they saw as a stolen 2020 presidential election made their way into the Capitol, some after battling with police.
“However, some of the footage shows people casually walking beside police officers, who appear indifferent and let them saunter along.”
The Legal Case
The U.S. Supreme Court now has a 6-3 Republican majority. It’s unlikely it would uphold any attempt to keep a Republican former president off the ballot.
Mr. Trump allegedly violated the “insurrection” clause in the Fourteenth Amendment: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
It was enacted after the Civil War to prevent Southern Confederates from holding office. But notice it explicitly refers to those who have previously taken an oath “as an officer of the United States” (or member of Congress or state official)—not as president.
Michael Mukasey, a former U.S. district judge and U.S. attorney general from 2007–09 under former President George W. Bush, recently explained what that means: “The use of the term ‘officer of the United States’ in other constitutional provisions shows that it refers only to appointed officials, not to elected ones. In U.S. v. Mouat (1888), the Supreme Court ruled that ‘unless a person in the service of the government ... holds his place by virtue of an appointment ... he is not, strictly speaking, an officer of the United States.’ Chief Justice John Roberts reiterated the point in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010): ‘The people do not vote for the “Officers of the United States.”’
“Article VI of the Constitution provides that senators and representatives ‘and all executive and judicial Officers ... of the United States’ take an oath to support the Constitution. But the presidential oath is separately provided for at the end of Article II, Section 1, which would be superfluous if the president’s oath were required by the general language in Article VI. Mr. Trump took an oath as president pursuant to Article II, not as an officer pursuant to Article VI.’
“Because the Insurrection Clause applies only to those who have taken an oath ‘as an officer of the United States,’ he can’t be barred by that clause from serving in any capacity.”
The Military Oath
Let me add Mr. Mukasey’s argument is buttressed indirectly by the Oath of Enlistment I remember taking when I went to U.S. Army Boot Camp in 1978 at Ft. Leonard Wood, Missouri:
“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”
That’s from Title 10, US Code. Note the president is separate from “the officers appointed over me,” because those “officers” are “appointed” by the president, who is not an officer.
And look at this from 5 USC PART III, Subpart B, CHAPTER 33, SUBCHAPTER II: OATH OF OFFICE. It’s for commissioned officers: “An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: ‘I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.’ This section does not affect other oaths required by law.”
The president specifically is exempted from taking an Oath of Office as an officer, because he’s not an officer; he’s elected to direct and instruct the officers. As Mr. Mukasey noted, the president takes a separate Oath of Office.
Conclusion: You’ll Be Able to Vote for or Against Trump
Look back to the 2000 election problems, with the “hanging chads” messing up vote-counting machines. It ended when the U.S. Supreme Court ruled, 5–4 in Bush v. Gore, to let stand the actual voting process that occurred. It ruled against the Florida Supreme Court, which had ordered a recount of more than 61,000 allegedly defective ballots.
In a similar fashion, in 2020 the court rejected Mr. Trump’s challenges to the vote counting in several cases.
As the saying has it, “The Supreme Court reads the headlines.” It does get involved in such things as redistricting cases, such as Allen v. Milligan last September. But getting involved in the actual voting process, which is supposed to be a democratic free-for-all and is conducted by state and local officials, is a step it’s not willing to take.
That’s why I think, if Mr. Trump actually is kicked off the ballot in California or elsewhere, the Supreme Court would intervene precisely to let the voters have the final say.
Which is as it should be. In our democracy, it’s the voters themselves who decide whether Mr. Trump or any other candidate wins the crown.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
John Seiler is a veteran California opinion writer. Mr. Seiler has written editorials for The Orange County Register for almost 30 years. He is a U.S. Army veteran and former press secretary for California state Sen. John Moorlach. He blogs at JohnSeiler.Substack.com and his email is [email protected]