Is Trump In or Out?

When running for reelection in 2020, President Donald Trump repeatedly claimed Democrats would try to “rig” the election with fraudulent mail-in ballots. When pressed that summer by Chris Wallace on Fox News for a direct answer on whether he would accept the election results, he said he would “have to see.” Asked again, he said, “No, I’m not going to just say yes. I’m not going to say no, and I didn’t last time, either.”

Just a candidate engaging in his First Amendment right to speak his own mind, right? If that were just an off-the-cuff opinion, maybe so. But that’s not what is going on when Trump tells his followers that the only election results they should accept are the ones they agree with. His continual assaults on the election system can lead to violent election interference—as we saw on January 6, 2021.

With the democracy at stake, we need a new guardrail for the election in 2024. Every state, blue or red, should require that as a condition for being on the ballot, the presidential candidates—and their electors—shall pledge under oath not to hinder or threaten that state’s election workers in the discharge of their duties, and not to threaten directly or indirectly the use of violent or non-legal means to challenge the legitimacy of the election. In addition, when direct or indirect threats have been made, the state in its discretion may require those candidates and their electors to post a bond set high enough to cover damages and expenses that the state or its election workers may incur from use of such violent or non-legal means, and could recover an appropriate fine or penalty.

Would such a law be constitutional under the First Amendment? Yes, because it is necessary to protect the integrity and safety of the election process. It is one thing for an ordinary citizen to call for the violent overthrow of the government, absent conduct, and quite another for a candidate, who acts by design of the Constitution in a state-regulated process, to refuse to abide by that process. His hypothetical statement that he will not accept the outcome immediately makes election workers a target.

There is precedent for this kind of law. In 1870 and 1871, Congress passed as a series of Enforcement Acts, also known as the Ku Klux Klan Acts, in an effort to stop the Klan from terrorizing Black citizens for exercising their right to vote, to run for public office, or to serve on juries. What is now Section 1985(1) of U.S. Code Title 42 makes it illegal for two or more persons “to conspire to prevent, by force, intimidation, or threat, any person from . . . holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof.” Likewise, Section 1985(3) prohibits a conspiracy to deprive voters of their right to support candidates of their choice. Whether the Fourteenth Amendment’s insurrection clause already disqualifies Trump from being a candidate—a question now before the U.S. Supreme Court—the Ku Klux Klan Acts should at least prohibit him from continuing to make the same threat not to be bound by an election outcome after exhausting all lawful and non-violent means to contest it. Those threats are part of his election disinformation strategy—which led his lawyer Rudy Giuliani to make false claims against election workers in Georgia after the 2020 election. The workers faced threats and harassment, and in December were awarded $148 million in damages. Even if Trump has a First Amendment right to advocate for riotous challenges to elections in the abstract—“fight like hell,” he told the January 6 rally—that right becomes subject to regulation when he seeks to participate as a candidate in the state’s election processes. He has an enhanced ability as a candidate to disrupt the process and to cause harm to state officials and election workers.

By now it is clear that Trump’s refusal to agree to future election results is an expected feature of his candidacy. The pledge forces him to renounce it. It is the equivalent of forcing him to wash out his mouth with soap. It demoralizes the criminal elements of his base. In most instances, the First Amendment may place the balance in favor of speech over the public safety, and rightfully so, but the Constitution makes clear that the government has a right to defend itself from existential threats, as the word treason appears throughout the 1787 text.

Even aside from federal law, the states have their own institutional interest in protecting the integrity of the election. Under the Constitution, the states run the presidential and all other federal elections. It is an unfunded mandate that was placed by the Constitution of 1787 upon the states when the federal government had no money of its own. To be sure, a state cannot vary or add to the qualifications to the office of president that are outlined in the Constitution. The 1995 Supreme Court case U.S. Term Limits, Inc. v. Thornton made it clear, as well, that states cannot set different qualifications for members of Congress—such as limiting the number of terms they can serve. States can, however, set rules necessary to keep the elections from descending into chaos. Some of these rules keep candidates off the ballot. Under Article I, Section 4, states can regulate the time, place, and manner of federal elections, unless Congress has adopted a superseding rule. It can at least protect its own employees from threats. And above all, it can protect the rules and integrity of the election process itself.

That principle was upheld when a Hawaii voter in the late 1980s challenged his state’s law that prohibited votes for write-in candidates. Ruling in Burdick v. Takushi (1992) the Supreme Court found that such a law did not unconstitutionally restrict the voter’s rights under the First and Fourteenth Amendments. Such rights must be weighed against the state’s interest, the Court ruled: “A court considering a challenge to state election law must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments’ . . . against ‘the precise interest put forward by the State as justification for the burden imposed by its rule.’” 

You could argue that, under Burdick, a pledge to abide by election results could have a serious impact on the right to vote. Trump’s refusal to give the pledge would deprive some millions of the state’s voters of the right to choose him. On the other hand, the chaos the state seeks to head off is the most extreme imaginable. Not only public safety but democracy itself is at risk. Just as elections have consequences, so do the assaults upon them. And a candidate is in a different framework and subject to different rules than an anarchist threatening violent overthrow on a Sunday afternoon in the park.

Democracy is already at risk from Trump’s lying—the large-scale organized lying about matters of fact. In this election, the lying is that Trump won, literally, the last election. Hannah Arendt wrote that such lying in public life is a form of violence. The state can also treat it as a precursor to violence. It is the candidate’s threat of violence to come. The state ought to be able to protect itself against such a threat to its election process, to force a pledge, and even require a bond to cover a substantial fine or penalty for breaking it.

Some will say it does not matter whether Trump makes such a pledge or not. It does matter. The single most important way to defend democracy in our country and around the world is to require candidates to say, directly, whether they are in it or not. It is to prevent Trump and others from having it both ways— from being inside and outside of the democracy at the same time.

Yes, Trump can bring a legal challenge, and perhaps even win in court—after all, there is the Fifth Circuit, and a right-wing Supreme Court. It may turn out that there is a constitutional right, at least in the eyes of the Federalist Society, to engage in a conspiracy to overturn a legitimate election, and the Ku Klux Klan Acts are unconstitutional too. Let’s find out. Let his claim to be in and out of the democracy be the central issue of the campaign.