Supremes May Have Offered a Hedge Against Grassroots Violence

Supreme Court

            New Orleans      In the recent Supreme Court’s decision that voided a state’s ability to deny a place on the ballot to candidates for federal office because Congress needed to enact a law indicating how they would handle disqualifications under the 14th Amendment for insurrection, former President Trump got a pass.  I never thought he could be blocked from the ballot by a state, nor did I believe that anything other than the ballot box was the way to stop him, so none of this was a surprise to me.

Subsequent reports open the possibility that within that predictable decision there may be an opening to dial back some of the divisiveness at the local and state level.  The Court was clear that states could not bar federal candidates, but they had a big green light giving them the go ahead to bar local and state officials who participated in insurrection.  In one case with the founder of Cowboys for Trump who was a county commissioner in New Mexico, a judge has already acted to dismiss him from office for having been part of the January 6th attack on the Capitol.

This doesn’t mean that it would or should be easy or often happen, but it might give some of the crazies a pause and force some second thoughts.  Part of the problem is legally defining an insurrection and the benchmarks for participation.  The New Mexico judge seems to have used both actions and words in rending the decision.  If just calling for war, civil strife, and insurrection is sufficient to be disqualified for office and either removed or denied a place on the ballot, it will be a feast day for lawyers and civil libertarians, but it might actually impose some standards of civility on public and political speech.

Of course, there’s the “war on poverty,” the war on crime, the war on drugs, and other so-called wars, but that’s nothing but hyperbole.  No one misunderstands the fact that this means a comprehensive effort to deal with an issue.  That’s different from when some extremist groups threaten election officials and others violently or issue a call to arms to fellow citizens if x, y, or z doesn’t happen, which they oppose.  For example, are groups or individuals that threaten or call for a race war involved in insurrection, if this is directed in a public forum at public or elected officials?  Charlottesville, Virginia, several years ago is a case in point. Clearly, there needs to be more definition, but if you have read or heard some of the screeds in some of our deep red states these days, most simple definitions of insurrection would bar such advocates from public office, even if this was protected speech under the first amendment.

Everyone from the Beatles on down has called for a revolution, at least in general terms, but that’s different that calling for an overthrow of the government.  Such advocacy of insurrection is chilling when it is used to intimidate, keep voters from the polls, and threaten public and elected officials.  The Supreme Court has opened the door.  Now local and state governments need to take action to define these terms so that all sides of our public discourse are allowed to speak and participate without fear. Those who would take their rhetoric seriously as a plan way past simple speech need to understand that there are serious consequences for them.  District attorneys and attorneys general need to see their job as protecting democracy, no matter their party or persuasion.