Is it Democratic to Disqualify a Popular Candidate From the Ballot?

Benjamin A. Schupmann at the Oxford University Press Blog: That a popular candidate could be disqualified from running and removed from the ballot might, at first glance, seem at odds with the very idea of democracy. For that reason, despite his evident role in instigating an insurrection, many Republican senators demurred and chose not to impeach former President Donald J. Trump on 13 January 2021. There was no need, they thought. The American voters had already passed judgment. Trump would now fade away.

Three years later, with Trump still fully in control of the Republican Party and poised to regain the Presidency, the US Supreme Court decided per curiam that Courts cannot declare a candidate ineligible for public office under the “insurrection clause” of the Fourteenth Amendment. Moreover, the Supreme Court’s scheduled hearing of Trump’s executive immunity claim seems intended to guarantee that the federal January 6 case will occur too late to influence or interfere with the 2024 US Presidential Election.

In these and other cases, we can see that, despite the existence of constitutional mechanisms to disqualify antidemocrats from obtaining power, elected representatives, judges, and other officials are reluctant to use them.

At first glance, there seems to be something principled about their reluctance: what is democracy if not an equal chance to see one’s preferred candidate elected into public office; and what are political rights if not the right to choose one’s values freely, even if that choice may seem “wrong” to others? As long as someone adheres to the legal democratic procedures in effect for pursuing their goals, are their views not as valid as anyone else’s?

Democracy seems to mean that every member should have their interests and values considered equally, through value-neutral majoritarian procedures. Everything should in principle be “on the agenda” when it comes to these procedures, to ensure that the electorate holds final authority over decision-making.

A measure like political disqualification seems to undermine the essence of democratic equal chance—even when used to stop an unambiguous enemy of democracy. So many today, across the political spectrum, express reservations about using such measures, arguing that the decision can only be left to voters to decide.

That view is mistaken, however. Elected and appointed leaders, not to mention democratic citizens, can be more confident in their defence of democracy. Constitutional mechanisms that limit value-neutral procedures, including disqualification, can be consistent with our most fundamental ideals of democracy.

The near collapse of democracy during the interwar period provides some insight into why that may be. It highlighted two related problems with conceiving of democracy merely as a value-neutral procedure. First, although value-neutral procedures are indeed important to democracy, they are insufficient. Liberal constitutionalism—human rights, the separation of powers, and the rule of law—is as essential. Without it, majority or even supermajority rule can become tyrannical and as oppressive as a dictatorship. So-called “illiberal democracy” is a contradiction in terms. A state must also guarantee basic rights, separate and balance its powers, and adhere to the rule of law to be considered a legitimate democracy.

Second, the interwar period exposed the limits of traditional methods of constitutional entrenchment, such as supermajoritarian thresholds. Those methods assume most citizens are fundamentally committed to democracy. That assumption proved wrong. Many citizens are at best weakly committed to democratic principles. Some are illiberal and antidemocratic. Others prioritize partisan interests over democratic principles. Antidemocrats can exploit a complacent or self-interested majority and turn democracy’s value-neutral procedures against its constitutional essentials, leading to democratic suicide…

More here.