Former President Donald Trump speaks at the California Republican Party convention on Sept. 29 in Anaheim. There are legal efforts in 28 states to keep Trump off ballots.
I thought we should keep Donald Trump’s name on California’s presidential ballot.
Until I went to Berlin this fall.
At a conference on German election law, I met Gregor Hackmack, an entrepreneur so committed to democracy that he created a nonpartisan online platform for direct dialogue between everyday people and elected representatives.
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But now he’s organizing a petition to ban Germany’s second-most-popular political party — the far-right Alternative for Democracy, or AfD — from participation in politics.
Hackmack is wrestling with one of democracy’s hardest questions: When, if ever, can a democracy exclude anti-democratic politicians and parties from democratic elections?
The question is urgent because democracy worldwide is threatened by authoritarian leaders — in Russia, Iran, Venezuela, Egypt, Turkey and Tunisia — who won office through democratic elections.
Blocking candidates from elections doesn’t come naturally to democratically minded people. Nor should it — it’s a despot move. Autocracies routinely maintain power by blocking opposition figures from standing for office.
So why and how could we justify blocking candidates? One answer might be called the Democratic Self-Defense Exception: You should bar parties and politicians only when they threaten democracy itself.
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The self-defense exception is the logic behind legal efforts by some Democrats and nonprofits to remove Trump from 2024 ballots.
It is also why it makes sense to examine how Germany, where the Nazi party took power through elections, reckons with those who threaten its democracy.
In Germany, AfD is the political party that poses a danger to democracy — and society. AfD partisans threaten democratically elected officials. One party leader expressed pride in Germany’s World War II accomplishments. The party embraces racist policies toward migrants, and it pledges mass deportation and cancelation of citizenship for minority groups.
Yet since its founding in 2013, AfD has secured support from one-third of voters in the country’s economically marginalized east, and 21% of respondents in national polls, the second highest level of support of any party.
Germans like Hackmack argue for banning the party because such racism and anti-migrant policies violate the human rights provisions of the German Basic Law, the country’s post-war governing document, which was developed with American assistance.
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They also point to the Basic Law’s Article 21, which specifically provides for banning parties that do not “conform to democratic principles,” “seek to undermine or abolish the free democratic basic order” or “endanger the existence of the Federal Republic of Germany.” Germany’s federal constitutional court gets the final say on banning a party.
To those who suggest that banning the party is a political question best left to voters in future elections, German Institute of Human Rights Director Beate Rudolf, a ban supporter, writes: “German history in particular has shown that the free democratic basic order of a state can be destroyed if positions of contempt for humanity do not meet with energetic opposition in good time and are thus able to spread and gain acceptance.”
Ban supporters — including members of the country’s center-right party, the CDU — have gathered more than 400,000 signatures on a petition demanding the parties and national parliament ask the constitutional court to ban the party. Still, it’s unclear whether the petition will succeed; it’s been decades since the court banned a party.
Here in the U.S., there has been no such popular organizing to keep Trump off the ballot — despite the threat he poses to democracy. Instead, the campaign has been legal, with court challenges in 28 states designed to keep Trump off ballots.
These cases are grounded in Section 3 of the 14th Amendment, which excludes from future office any person who has taken an oath to support the Constitution and then rebelled against it, either through insurrection or by giving “aid and comfort” to the Constitution’s enemies. Trump’s actions — his efforts to overturn the election, the Jan. 6 insurrection and his promises to violate the Constitution if he returns to office — all satisfy this criteria for ineligibility.
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Trump’s conservative critics are pushing hardest to boot him from the ballot.
“A president who tried to use force and fraud to stay in power after losing an election should not be allowed to wield the power of office ever again,” writes George Mason law professor Ilya Somin. “And we need not and should not rely on the democratic process alone to combat such dangers.”
But the litigation hasn’t gotten much traction in the courts, or political support, even from Trump critics. In California, state officials have taken no visible steps to block him from the March 2024 ballot before a Dec. 28 deadline.
Trump argues, falsely, that taking him off the ballot would violate his rights for voting or free speech. But democracy grants no inherent right to be president. What citizens of democracies do have — as I was reminded in Berlin — is a responsibility to protect democracy by excluding those who won’t abide by its rules.
Joe Mathews is a columnist and democracy editor for Zócalo Public Square.
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