How Trump critics are using the 14th Amendment to try to kick him off ballots
WAPO
Courts and election officials around the country are considering challenges to former president Donald Trump’s ability to run for office again. In a historic decision on Dec. 19, the Colorado Supreme Court barred Trump from running in the state’s March 5 presidential primary after determining that he had engaged in insurrection on Jan. 6, 2021. Here’s a look at how the legal cases are playing out across the country.
What’s the legal argument for keeping Trump off the ballot under the 14th Amendment?
The 14th Amendment, ratified in 1868, includes a provision meant to keep those who sided with the Confederacy during the Civil War from serving in office. Specifically, Section 3 states if someone took an oath to support the Constitution and then participated in an insurrection, he or she cannot hold certain offices.
Trump’s opponents have seized on that part of the Constitution with lawsuits that contend he cannot run again because of his efforts to overturn the 2020 election and his role in the Jan. 6, 2021, attack on the U.S. Capitol.
Where are the cases happening?
The 4-3 ruling from the Colorado Supreme Court to bar Trump from the state’s primary ballot marked the first time a court kept a presidential candidate off the ballot under an 1868 provision of the Constitution that prevents insurrectionists from holding office.
The Colorado Republican Party has asked the U.S. Supreme Court to review the decision, but it will be up to the justices to decide whether to take the case. Scholars have said only the nation’s high court can settle the issue of whether the Jan. 6 attack on the U.S. Capitol constituted an insurrection and whether Trump is banned from running. Maine’s secretary of state on Wednesday found Trump was ineligible for that state’s ballot. Trump can appeal the decision to state court.
In separate cases, the top courts in Minnesota and Michigan declined to remove Trump’s name from the primary ballot in those states. Meanwhile, a Texas tax consultant has gotten no traction with a string of lawsuits he has filed on the issue.
Who is involved?
The legal theory that Trump cannot run is backed by an unusual mix of conservatives and liberals. Voters are bringing lawsuits with the assistance of watchdog groups like Citizens for Responsibility and Ethics in Washington and Free Speech for People.
In most cases, the suits are being filed against election officials because they are the ones responsible for deciding who appears on ballots. Election officials in many cases have tried to stay out of the fray and asked courts to decide the matter without taking a stance on whether Trump can run. Trump and branches of the Republican Party have intervened in some of the cases.
What is the timeline?
The lawsuits must move quickly because election season is approaching, with Iowa’s caucuses scheduled for Jan. 15. Many courts may rule after then, but the cases become more politically complicated as more caucuses and primaries are held through the spring. The Republican National Convention begins July 15, and all sides hope to have the issue resolved well before then.
What happens after the initial rulings?
Some challenges were filed with election officials, some with state trial courts and some with state supreme courts. Rulings by state supreme courts can be appealed to the U.S. Supreme Court. The U.S. Supreme Court can take cases if it wants but is not required to do so.
Will the U.S. Supreme Court get involved?
The Colorado Republican Party appealed the Colorado Supreme Court’s decision to the U.S. Supreme Court, and Trump has predicted that the high court would toss the state court’s ruling. Three of the nine U.S. Supreme Court justices were appointed by Trump, and the court has a 6-3 conservative majority.
Has this issue come up before?
Section 3 has gotten little consideration since the era just after the Civil War — until recently.
Last year, Section 3 lawsuits against Reps. Madison Cawthorn (R-N.C.) and Marjorie Taylor Greene (R-Ga.) failed to keep them off the ballot. (Cawthorn went on to lose his primary; Greene continues to serve in Congress.)
But a judge in New Mexico last year removed a county commissioner from office after the official was found guilty of a misdemeanor for trespassing on the Capitol grounds on Jan. 6. The state judge determined Couy Griffin, an Otero County commissioner and the founder of Cowboys for Trump could no longer serve in his position as a county official because he had violated Section 3. It was the first such ruling since 1869, according to those who brought the lawsuit.
What are the arguments against Trump?
Courts will be scrutinizing the words and history of Section 3, which in full states: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
To kick Trump off the ballot, those bringing the lawsuits need to prove Trump meets every aspect of the section. That gives Trump and his backers many arguments against the legal theory. Some of them are below.
Section 3 prevents some people from holding office, but does it prevent them from running?
Section 3 does not say anything about running for office, and Trump’s supporters argue election officials and judges can’t prevent him from getting his name on the ballot. If he wins, it will be up to Congress to confirm he can serve, they say.
Does Section 3 apply to the presidency?
Section 3 says it applies to senators, representatives, presidential electors, state offices and federal offices “under the United States” — the last one being the only one that possibly applies to the presidency. Trump’s backers argue those offices are for military officers and postmasters, not presidents. Those bringing the lawsuits say the presidency is clearly an office under the United States.
Did Jan. 6 amount to an insurrection?
Trump’s opponents say Trump cannot serve in office because he fostered an insurrection, failed to put it down quickly and cheered on the Capitol rioters. Trump’s backers say the attack on the Capitol was not an insurrection, noting he has not been criminally charged with insurrection and was acquitted by the Senate after he was impeached by the House for inciting an insurrection. They argue that even if it was an insurrection, it was not one Trump “engaged” in because he wasn’t at the Capitol at the time.
Should Congress decide the issue instead of judges?
Trump’s supporters say Congress is the body that should determine who is fit to be president, not judges. They note Section 3 gives Congress the ability, with a two-thirds vote, to find an insurrectionist eligible for the presidency. Courts can’t block Trump from running because Congress could vote in the future to stipulate that he can serve, they argue.
Can Section 3 be applied on its own?
Trump’s supporters say Section 3 is not “self-executing,” meaning it cannot be used unless there is a federal law implementing it that spells out how and when it is applies. There is no such law, so there is no way to deploy the section, they argue.
Trump’s critics say Section 3 is clear and can be used, either on its own terms or through state laws that give election officials and courts the power to determine who can be on a ballot.
