Donald Trump’s campaign for a second term alongside his prosecution for seeking to block the transfer of power has raised questions over whether the former president can be barred from the ballot under a 14th Amendment provision targeting those involved in insurrections.
A handful of Colorado residents have launched a suit to remove Trump from the ballot there, a challenge that hinges on a clause in the 14th Amendment that states no person shall hold elected office who “engaged in insurrection or rebellion” against the United States.
Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington (CREW), which helped file the suit on behalf of six Republican and independent voters, equated the provision to other qualifications for running for office.
“The 14th Amendment says that anybody who swore an oath to support the Constitution and then engaged in insurrection is disqualified,” Bookbinder told The Hill.
“The Constitution says you need to be 35 years old to be president, [you need] to be a natural born citizen. And there are procedures in place for ensuring that only qualified candidates can run and can serve… . This is sort of just another constitutional qualification.”
While Trump has railed against the effort as “another ‘trick’ being used by the Radical Left Communists, Marxists, and Fascists,” the renewed look at the little-used provision was sparked by a law review drafted by two conservative law professors.
“It disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election,” William Baude and Michael Paulsen wrote of Section 3 of the amendment.
But the rarely cited provision leaves open questions about how Trump would be removed from the ballot – or if proactive measures are even needed to do so.
While some legal experts and lawmakers have argued the clause clearly applies to Trump over his role in the Jan. 6, 2021, attack on the Capitol, others cast more doubt and note any challenges are likely to be tied up in court.
Legal experts split
Michael Luttig, a former federal judge appointed by former President George H.W. Bush, and Harvard law professor Laurence Tribe have argued in recent weeks that Trump is barred from being on the ballot again because of the 14th Amendment clause.
The two wrote in a piece for The Atlantic that Trump’s efforts to overturn the 2020 election and the resulting attack on the U.S. Capitol on Jan. 6 place him “squarely” within the scope of the clause.
“The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause,” the two wrote.
However, Michael McConnell, director of the Constitutional Law Center at Stanford Law School, expressed doubts about the likelihood of efforts to remove Trump from the ballot being successful.
“This is uncharted territory. Any lawyer or scholar who tells you confidently one thing or the other is making it up. No one really knows,” McConnell said. “I think it’s pretty unlikely that these challenges are gonna succeed.”
Further, McConnell argued that the claim that Trump himself “engaged in insurrection,” as stated in the amendment, could be difficult to prove based on his role in Jan. 6.
During his second impeachment trial, Trump’s attorney’s sought to make that case, arguing Trump’s speech that day didn’t meet the criminal bar for incitement.
But Bookbinder pushed back on that.
“How we view the law is that engaging in insurrection is quite broad. It doesn’t necessarily mean that you’re involved in hand-to-hand combat. It can be organizing and inciting and inspiring and normalizing and some of those kinds of things,” Bookbinder said.
Brian Kalt, a law professor at Michigan State University, noted that some have argued that a conviction should be necessary for any disqualification from the ballot, but that is not settled. He added that a conviction would “certainly strengthen” the case for disqualification.
While Trump is facing charges on numerous counts for his conduct leading up to Jan. 6, he was not charged under the Insurrection Act – a criminal statute that includes its own bar on holding elected office.
Bookbinder argued such a conviction would be unnecessary for determining whether Trump qualifies to hold office.
“The case law and the history is strong that you don’t need any criminal charges or conviction – you certainly don’t need a criminal charge or conviction for insurrection – to have somebody be disqualified under the 14th Amendment. It’s not a criminal punishment; it’s a qualification. And so it’s a totally separate legal standard,” he said.
Uncertainty about enforcement
Where the parties agree is the general confusion over how the constitutional provision would even be triggered.
While some states like Colorado allow for lawsuits, others prompt residents to petition the secretary of state for removal.
Free Speech For People has stopped short of any formal efforts, but it has flagged the issue for 15 secretaries of state, from both parties.
Still, Baude and Paulsen say election officers need not take any action at all.
They argue it would take an act of Congress to allow Trump to be listed as a candidate for office, citing a line in Section 3 stating that “Congress may by a vote of two-thirds of each House, remove such disability.”
Trump on Friday filed a motion to remove the Colorado case to federal court, a nod to a potentially lengthy legal battle that could touch on any number of issues raised by the amendment.
Kalt noted that whoever loses the case would appeal, and he hopes the result of these challenges will be a more “clear picture” from the Supreme Court on what is considered an insurrection and what the right process is for determining the applicability of the 14th Amendment in a candidate’s eligibility.
“Whoever wins the initial decision, it would get appealed up to the Supreme Court, which would hopefully provide some much needed clarity here,” Kalt said.
The effort to remove a candidate from the ballot isn’t entirely unprecedented.
A similar suit from CREW in New Mexico proved successful, with a state judge ordering Otero County Commissioner Couy Griffin removed from office immediately, citing his participation in the mob that stormed the Capitol.
It was the first time someone had been disqualified from holding office under the amendment since 1869.
‘I think it’s hugely significant as proof of concept that this is a protection for our democracy. That up applies now, just as it did when it was put into place in the 1860s,” Bookbinder said.
Secretaries of state weigh in
Still, further judicial clarity is appealing to secretaries of state as they face greater pressure to evaluate Trump’s candidacy.
Colorado Secretary of State Jena Griswold (D) said she has been speaking with other secretaries of state on the issue and is hopeful that the case will provide guidance should it come up in other states.
“I think it’s good that a court is considering these questions,” Griswold said. “And I hope the case provides guidance, particularly on Colorado law and that constitutional provision to my office and to offices across the nation about Trump’s eligibility as a candidate.”
She acknowledged that the situation is unprecedented.
“My job ultimately is to follow the law and uphold the Constitution, and where there are questions of the constitution or the law, it’s appropriate for a court to weigh in,” Griswold said.
In New Hampshire, state Attorney General John Formella and Secretary of State David Scanlan, both Republicans, issued a statement in late August saying they were aware of discussion around the potential applicability of the 14th Amendment.
“Neither the Secretary of State’s Office nor the Attorney General’s Office has taken any position regarding the potential applicability of Section Three of the Fourteenth Amendment to the United States Constitution to the upcoming presidential election cycle,” the two said in a statement, adding that the attorney general’s office was “carefully reviewing the legal issues involved.”
Arizona Secretary of State Adrian Fontes, a Democrat, said late last month that he does not have the ability to bar Trump from the ballot because of a ruling by the Arizona Supreme Court.
McConnell, the Stanford law processor, was skeptical that the Supreme Court would ultimately throw a candidate with widespread support among the public off the ballot.
It was a concern also raised by Georgia Secretary of State Brad Raffensperger, who has been a central figure in both a federal and state indictment brought against Trump for election interference.
In a Wall Street Journal op-ed this week titled “I Can’t Keep Trump Off the Ballot,” he argued that using the 14th Amendment to boot the former president from the ballot would amount to short-circuiting the voting process.
“For a secretary of state to remove a candidate would only reinforce the grievances of those who see the system as rigged and corrupt,” he wrote.
Jared Gans and Julia Manchester contributed.
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This story was originally published September 9, 2023, 3:00 AM.