To address this pressing problem, at least one secretary of state with the authority to make candidate eligibility rulings under state law must declare that Trump cannot appear on that state’s presidential primary ballot. (A recent Washington Post piece makes a similar recommendation.) Not all states give their secretary of state this authority, but in those that do (like Colorado), these officials also swear an oath to uphold the Constitution. Baude and Paulsen give them a robust constitutional rationale for excluding Trump. Oath breaking must be met with oath keeping. Of course, such a decision by a secretary of state will not be the final word. The Trump campaign will sue to get him back on the ballot, and the Supreme Court will not stand idly by while some states let Trump appear and others do not. A swift declaration by a secretary of state, though, will get the eligibility litigation started sooner and give the Justices more time to consider the matter before voters in Iowa and New Hampshire go to the polls. This would be a non-partisan act to ensure an orderly election.

When the Justices hear the Trump challenge, they must rule on the merits. Any attempt to dodge the heart of Section Three by dismissing a proper case as non-justiciable or on some tangential ground would be disastrous. Allowing Trump to run and potentially serve without commenting on whether January 6 was an insurrection and, if so, whether Trump engaged in insurrection would create a crisis of legitimacy. We must know who the president is on Inauguration Day. And reasonable people would not know who the president is if Trump wins, and the Supreme Court ignores the arguments of those who believe that he cannot legally become president. A decision that he is eligible under Section Three is better than no decision at all.

In their paper, Baude and Paulsen describe Section Three of the Fourteenth Amendment as a “constitutional immune system, mobilizing every official charged with constitutional application to keep those who have fundamentally betrayed the constitutional order from keeping or reassuming power.” The state officials who stood fast in 2020 by rejecting dishonest efforts to overturn the election result must now complete that task by holding Trump accountable for failing to protect, preserve, and defend the Constitution of the United States.