On Saturday Night Live recently, comedian Chris Rock joked that the Constitution’s eligibility criteria for president (minimum age 35, and born in the U.S.) are too lax: “There’s more rules to [get onto] a game show than to running for president. Like Donald Trump left a game show to run for president because it was easier!”

All joking aside, we should not lightly amend the blueprint for our nation that was so carefully crafted by our Founding Fathers to impose stringent eligibility criteria to be the Commander in Chief and the head of the Executive Branch of the federal government. 

Dan Recht

But, without a formal amendment, I do not believe it is too much to ask that anyone who seeks to hold our nation’s highest office, regardless of the party (s)he represents, should – actually MUST – satisfy one additional “minimum eligibility criterion”: commit, publicly, in advance of any national election, that you will abide by the results of the election as so certified by the state elections officials to whom that duty is delegated.  

In other words (phrased in the converse): any person who refuses to commit, in advance of an election, to continue our system of government, should not be permitted, by any political party or by We The People, to continue his or her campaign for that office. His or her name should be stricken from the ballot. No joke.

Imagine a third-party candidate, we’ll call her Jane Flamethrower, running as the presidential candidate of the Anarchy and Mayhem Party. Asked whether she will abide by the results of the election, she proudly declares, “Well, I’ll let you know after the election. My heavily armed followers will take my direction after I, independently, decide whether the election was actually conducted fairly or, in my own estimation, was rife with fraud and therefore was rigged.” 

Does anyone seriously believe that Ms. Flamethrower would be permitted to continue her campaign to become the next president of the United States? Of course not.

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And yet, as of this writing, one of the two major political parties’ candidates (who happens to be the sitting president) has essentially uttered the same words as the theoretical Ms. Flamethrower, only far worse: he’s already publicly declared, on multiple occasions, that any election result that determines he was not the winner, is, by definition, “rigged” and illegitimate, and, therefore, he WILL NOT honor that result, nor commit to a peaceful transition of power.

This is not hyperbole. At the Republican National Convention in August Trump proclaimed, to a round of cheers, that “The only way they can take this election away from us is if this is a rigged election!” 

Then, after he’d accused Democratic governors and secretaries of state of not mailing ballots to Republican neighborhoods – completely seriously – he declared, “What they’re doing is using COVID to steal an election.”

At a campaign rally on Sept. 13, Trump declared, again to cheers, “The Democrats are trying to rig this election, because it’s the only way they’re going to win.”

He’s not hiding the ball, he’s holding it straight out, in all of our faces.  Trump has repeatedly declared, including during the first presidential debate, that (1) he will not abide by the results of the election unless he, independently, determines that it was conducted “fair[ly] and clean[ly],” and (2) he deems all mail-in ballots to be inherently unreliable, because, he claims (completely falsely) they are susceptible to “widespread fraud.”

There is, of course, absolutely no evidence whatsoever to support the latter proposition: indeed, as the conservative Heritage Foundation has determined, the incidence of so called “election fraud” (ineligible ballots) being cast by mail in ALL past elections is .00006%.

But as Trump has shown, time and time again, actual facts don’t matter to him: if he says voting by mail is not trustworthy (which he does, daily), then he is justified in refusing to respect the outcome of the election.

We’ve now reached the point where Susan Page, who moderated the vice presidential debate, felt compelled to ask both candidates, “What do you plan to do, personally, if President Trump loses the election but refuses to relinquish his office?” 

Seriously. That such a question actually needs to be asked speaks volumes about the current state of our democracy.

How could we have come to this point?   

It began when Trump was permitted to remain a viable candidate for president even after he held campaign rallies in 2016 at which he encouraged his loyal followers to chant “Lock her up!” thereby suggesting that if elected he would actually jail his political opponent. 

These are the acts of tyrants who lead banana republics and other totalitarian regimes. And, he was also not deemed disqualified from the ballot after he stated, in the third presidential debate, that he would “wait and see” whether he deemed the election “rigged,” before he would determine whether he’d accept and respect the outcome.

Since then, of course, Trump has also refused to respond to the congressionally issued subpoenas for records, as part of the House impeachment investigation, because he alone deemed that constitutionally mandated process “illegitimate,” a “hoax.” 

Never mind that he was impeached by the U.S. House of Representatives, and that at least one member of his own party had the moral courage and integrity to vote to remove him from office.  

In Trump’s mind, he alone is empowered to decide when tasks delegated exclusively to other government officials, be they the Congress or state election officials, are “legitimate.”

And, throughout this systematic transparent dismantling of the rule of law, the Republican Party has stood idly by and enabled him. 

So here are two questions I urge the moderator(s) of the next presidential debate to put to both candidates, and to demand a coherent answer, not evasive campaign rhetoric:   

Do you believe, Sir, that any candidate for the nation’s highest office should be permitted to remain on the ballot if (s)he refuses to publicly commit, in advance of the election, that (s)he will honor, respect, and fully abide by the results of the election, as determined by the state elections officials who are responsible for making that determination?  

And if you believe that a refusal to make such a commitment should not be disqualifying, why?

The American people deserve to hear directly from the candidates, and from the parties they represent, whether they are committed to maintaining our system of government, or not. We needn’t amend the Constitution to require political candidates and their parties to pledge to uphold it, not dismantle it.

Dan Recht is a criminal defense and constitutional law attorney. He is a former chair of the ACLU of Colorado and former president of the Colorado Criminal Defense Bar.

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