(Credit: Saul Loeb/AFP/Getty)

March 5, 2024   4 mins

It’s on. The Supreme Court has ruled that no state can use the 14th Amendment of the Constitution — which bans insurrectionists from holding office — to keep Tump off the ballot. Stand down, then, Colorado and Maine, the two states in the vanguard of moves to get him disqualified.

The decision to allow the former president to stand was unanimous, with the Court’s conservative majority and liberal minority in agreement. The conservatives actually went further, ruling that for the 14th Amendment to be brought into action (section 3, incidentally) something important has to happen: Congress would have to approve it.

This rather dry-sounding suggestion is anything but for some Americans. A small group of law professors told the Court, with alarm, that it should not pursue this course of action. They asked the justices to consider a perfectly feasible outcome in the presidential election: that Trump win the presidential poll — via an electoral college that hands it to him in spite of not winning a majority of Americans’ votes — only for the Democrats to overturn the Republicans’ tiny current majority in the House of Representatives.

Then, the professors argue, suddenly the 14th Amendment, Section 3 (the insurrection disqualification) is back in play:

“If Mr. Trump wins an electoral-vote majority, it is a virtual certainty that some Members of Congress will assert his disqualification under Section 3. That prospect alone will fan the flames of public conflict. But even worse for the political stability of the Nation is the prospect that Congress may actually vote in favor of his disqualification after he has apparently won election in the Electoral College.”

The professors add, with admirable understatement, that “neither Mr. Trump nor his supporters, whose votes effectively will have been discarded as void, are likely to take such a declaration lying down”.

Well, quite.

The point — and you might say this is an irony — is that Democrats have been trying not to certify presidential candidates for some time. That process is required in the constitution but was for most of the life of the USA a formality. Yes, Trump attacked it with an aggression and set of legal arguments that had never been tried in modern times, when he tried to get Mike Pence to refuse certification and encouraged Republicans in Congress to vote against, but the truth is that voting not to certify isn’t so unusual.

The granddaddy of all such efforts was during the 2000 election and the Bush v Gore tussle over hanging chads in Florida. The election had been close and came down to that state but anomalies with the voting system – the aforementioned chads – seemed to have stopped the Democrats having all their votes counted in Florida. The Supreme Court did eventually find for Bush and the certification came to Congress as usual. But that January, 2001, saw the first recent hard-line effort to get the result thrown out.

Democrats have been trying not to certify presidential candidates for some time

It was serious stuff. One representative from Florida objected to counting his state’s electoral votes because of “overwhelming evidence of official misconduct, deliberate fraud, and an attempt to suppress voter turnout”. A Texas Democrat referred to the “millions of Americans who have been disenfranchised by Florida’s inaccurate vote count”. The influential and long-serving Maxine Waters of California used the word “fraudulent”.

The problem for the electors was that Al Gore, the “wronged” candidate in 2000, was also vice president so had the same task that Mike Pence had in 2021: just do your job. The vice president is meant to oversee the certification process and simply rubber stamp it. Gore did that. And Bush became president.

But those were innocent times, prelapsarian times. So much water has flowed under the bridge since then, most of it, many Americans would say, murky and foul. And nothing is murkier than the thought of how all of this might play out in the world of social media. Of course, the Democrat members of Congress might view a Trump victory as something they had to swallow. There would be tears and recriminations, but the memory of Al Gore might hold them back. They might feel the weight of history on their shoulders: however unhappy they were with the result, there was really no path to overturn it.

But what if it were close? What if, say, some fake image of Joe Biden had been released, damaging him, in the run-up to the campaign? In other words that the campaign itself could be widely understood to be flawed. The whole of progressive America would be aflame: and the notion that Trump was always illegitimate because of January 6, because of what they regard as the insurrection, would be unleashed again.

The pressure on Democrats — individual members of Congress — to “do the right thing”, would be immense. Let the record show: did you vote to certify the insurrectionist or not?

It is true that the Electoral Count Act has been tightened: the threshold to lodge an objection during the joint session of Congress on January 6 after a presidential election has been raised to at least one-fifth of the House of Representatives and the Senate. But that is not a fire-proof majority if a grinning Donald Trump is eyeing up a second term, perhaps threatening to put Joe Biden in jail in revenge for the legal onslaught he has suffered while Biden was president.

And say for the sake of argument that they voted not to certify Donald Trump. What happens then? Well, nobody knows. In theory, his vice president might take over. But could Joe Biden simply be declared the winner. Or might Congress select someone else?

We are used to using the word chaos. These scenarios seem to require a new lexicon.

The professors who sent their amicus brief to the court were sufficiently worried to add to the dry legal argument some handily comprehensible zingers: “The Court will be inviting, and almost surely thrusting itself into the middle of, post-election tumult and potential public violence. Any contention that the time and place for determining Section 3’s applicability is on January 6, 2025, after the election is concluded, invites disaster for the Nation.”

Disaster for the Nation. They have not held back. But very few people have taken any notice. The Supremes think they have done their job. Amy Coney Barratt, one of the nine justices, wrote in her assessment of the outcome: “Particularly in this circumstance, writings on the court should turn the national temperature down, not up.”

Perhaps. But not for long. There is a real risk, post election, of boiling point being reached again.

Justin Webb presents the Americast podcast and Today on Radio Four. His Panorama documentary “Trump the Sequel”, is available now on  Iplayer