Republican officials threaten to remove Biden from the ballot

Missouri Secretary of State Jay Ashcroft (Photo By Tom Williams/CQ Roll Call)

Republican officials in several states are threatening to remove President Biden's name from the presidential ballot. The officials claim that removing Biden's name could be justified in response to Biden's immigration policies. The threat is rooted in a white nationalist conspiracy theory, the "great replacement," which posits Biden is intentionally allowing migrants to cross the border as part of a scheme to cement political control of the country. 

The warning by Republicans that they are prepared to kick Biden off the ballot comes in response to decisions in Colorado and Maine to disqualify Trump. These decisions, which are under appeal, are based on the text of the 14th Amendment, which states that anyone who "having previously taken an oath… engaged in insurrection" is disqualified from holding "any office, civil or military, under the United States."  

On X, Missouri Secretary of State Jay Ashcroft (R), who is currently a candidate for governor, said that if the decisions in Colorado and Maine are upheld, he would apply the "new legal standard" to Biden. 

Ashcroft said that the removal of Biden from the ballot could be justified because Biden purposely allowed an "invasion" of immigrants to cross the southern border. 

In a December interview on Fox News, Texas Lieutenant Governor Dan Patrick (R) said Texas could "take Joe Biden off the ballot in Texas for allowing 8 million people to cross the border since he’s been president." Florida Governor Ron DeSantis (R) said he was considering removing Biden because "he's let in 8 million people illegally, a massive invasion, including from enemies of our country."

All of these officials have their facts wrong. Customs and Border Protectionl has reported 8 million encounters with migrants since Biden took office. But, until August 2024, millions of those migrants were immediately expelled based on Title 42, a Trump-era policy that denied the legal right of migrants to seek asylum due to the public health emergency created by the COVID pandemic. Many of these encounters were the same migrants attempting to cross the border multiple times. Since Title 42 provided for immediate expulsion without the creation of an immigration record, it encouraged repeated attempts. 

Since then many more migrants have been expelled under a new Biden policy, which requires migrants to make an appointment using a smartphone app before presenting themselves at the border. Most undocumented migrants who are currently inside the United States are here legally. The Refugee Act of 1980 gives migrants inside the United States the right to claim asylum based on "a well-founded fear of persecution." During Biden's presidency, a much smaller number of migrants have been able to cross without detection, which was the case under Trump and every president. 

But even if the Republican claims about Biden's immigration record were true, how would that constitute Biden engaging in "insurrection"? That claim appears to be premised on the idea that Biden intentionally allowed millions of migrants to enter the country as part of a sinister plot to enhance the political power of Democrats. The racist conspiracy theory that Democrats are trying to "replace" white voters with non-white immigrants has been embraced by white supremacists. 

What the Constitution says

The Constitution includes several requirements for candidates for president. To run for president, a candidate must be at least 35 years old, a natural-born citizen, and have lived in the United States for at least 14 years. (Trump spent years asserting that President Obama was not a legitimate president, falsely claiming that Obama was born in Africa.) 

In 1868, another requirement was added with the ratification of the 14th Amendment. Section 3 states that if you win federal office, take an oath, and then "engage in insurrection" you are ineligible to hold "any office… under the United States." 

In Colorado, the state Supreme Court ruled that Trump was ineligible because he engaged in an insurrection that culminated on January 6, 2021. The Constitution does not define the term "insurrection," but the court ruled that Trump's conduct met both the dictionary definition and how the drafters of the 14th Amendment understood the term:

President Trump continued to fan the flames of his supporters’ ire, which he had ignited, with ongoing false assertions of election fraud, propelling the “Stop the Steal” movement and cross-country rallies leading up to January 6. Specifically, between Election Day 2020 and January 6, Stop the Steal organizers held dozens of rallies around the country, proliferating President Trump’s election disinformation and recruiting attendees, including members of violent extremist groups like the Proud Boys, the Oath Keepers, and the Three Percenters, QAnon conspiracy theorists, and white nationalists, to travel to Washington, D.C. on January 6. 

…With full knowledge of these sometimes-violent events, President Trump sent the following tweet on December 19, 2020, urging his supporters to travel to Washington, D.C. on January 6: “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6. Be there, will be wild!”

…At this point, the record established that President Trump’s “plan” was that when Congress met to certify the election results on January 6, Vice President Pence could reject the true electors who voted for President Biden and certify a slate of fake electors supporting President Trump or he could return the slates to the states for further proceedings.

Shenna Bellows, Maine's Secretary of State, ruled that Trump was disqualified from the Maine ballot based on similar evidence. Both rulings have been stayed pending Trump's appeal to the Supreme Court. As a result, Trump will appear on the primary ballot in both states. 

The Supreme Court could find in Trump's favor, ruling that Trump did not engage in an insurrection. (Something that is contradicted by voluminous evidence.) Or the Supreme Court could say that the 14th Amendment would only apply if Trump were convicted in court of engaging in an insurrection. (Something that does not appear in the text.) Or the Supreme Court could find a technical way to let Trump off the hook. One of these outcomes appears likely, particularly with the current composition of the court. 

But the process of taking the Constitution seriously is not, as Republicans like Ashcroft claim, "disgraceful" and does not "undermine[] our republic." 

Media advances the Republican narrative 

The Republican narrative that applying the 14th Amendment to Trump is a threat to the democratic process is being advanced by prominent media outlets. On December 22, for example, the New York Times published a piece that claimed that the "Colorado Supreme Court’s ruling that Donald J. Trump is constitutionally ineligible to run for president again pits one fundamental value against another: giving voters in a democracy the right to pick their leaders versus ensuring that no one is above the law."

The Washington Post editorial board wrote that excluding Trump from the ballot would "is dangerous." And claim courts "should be reluctant to prevent the country’s citizens from choosing an elected official to lead them."  

But voters in the United States have never had "the right to pick their leaders" without limitation. Arnold Schwarzenegger (R) proved to be a popular politician and was elected Governor of California twice. But voters could not select him as president because he was born outside of the United States. Congressman Maxwell Frost (D-FL) is a well-liked figure, but voters cannot select him as president anytime in the next decade because he is just 26 years old. 

If there was an overwhelming desire from voters to elect prior officeholders who engaged in an insurrection to the presidency, there is a mechanism to do that. They could elect representatives who would amend the Constitution to allow it. Until that happens, enforcing the qualifications to run for office under the Constitution is not an attack on democracy. It is a central part of the democratic process.