Rule of Law

This issue could knock Trump off ballots nationwide. Get ready for it to dominate primary season

Even as the criminal cases against Donald Trump dominate headlines, a different, less publicized wave of litigation is building that could endanger his presidential ambitions: efforts to exclude him from the ballot under a constitutional provision adopted after the Civil War.

The provision, Section 3 of the 14th Amendment, bars from office people who engage in “insurrection.” It has gotten renewed attention this month with publication of a lengthy law review article by two conservative legal scholars who argue that Trump’s conduct fits precisely within the amendment’s original meaning.

Even before that, however, liberal legal groups had begun researching state laws and working with voters who could challenge Trump’s access to the ballot.

“The American public should expect to see a series of challenges filed in state after state,” says Ron Fein, legal director of one such group, Free Speech for People.

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Challenges likely will come toward the end of this year and early next year, as the deadlines hit for candidates to file for the ballot, and could dominate the early months of the primary season.

“People are not anticipating how pervasive these will be,” said Notre Dame law professor Derek Muller, an election law expert.

Whether the efforts succeed is anyone’s guess; the legal issues are complex and without clear precedents and could lead to a Supreme Court showdown early in the new year.

Win or lose, however, the issue could severely disrupt a primary season that is already fraught with potential for strife and violence — another example of how Trump’s flouting of the law is stressing the country’s legal and political systems.

A constitutional exclusion

So what’s this all about?

The 14th Amendment, added to the Constitution three years after the end of the Civil War, is best known for its first section, which guarantees due process and equal rights to all American citizens and forms the basis of a huge swath of modern constitutional law.

At issue with Trump is Section 3 of the amendment, which bars from office anyone who, having previously sworn an oath to support the Constitution, has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The language was written to prevent former officials who had backed the Confederacy from regaining power, subject to an out — Congress could grant amnesty by a two-thirds vote.

Four years after the amendment was ratified, Congress approved such an amnesty, putting Section 3 on the shelf. There it sat, largely untouched, for 150 years until a pro-Trump mob stormed the U.S. Capitol on Jan. 6, 2021.

That the amendment’s strictures go beyond just the Confederacy seems fairly clear — nothing in the language limits it to the Civil War. Heated debate surrounds nearly everything else: whom the ban applies to, how it should be enforced, what types of conduct “insurrection or rebellion” covers.

One central question is whether Congress needs to pass a law to enforce the ban. Shortly after the amendment took effect, a federal appeals court held that was the case, but the recent law review article by professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas strongly disputed that.

“Section 3 is self-executing. That is, its disqualifications from office are constitutionally automatic,” they wrote, likening the disqualification to the requirement that the president be 35 years old and a natural born citizen.

“In our view, on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack,” they said. State elections officials, they said, have a constitutional mandate to uphold the amendment’s terms.

Another well known conservative scholar, Steven Calabresi of Northwestern University’s law school, has taken the same position, as have some leading liberal scholars, including Harvard’s Laurence Tribe.

Others — including Trump’s lawyers, but also some vocal critics of the former president — vehemently disagree. Opponents of using the 14th Amendment to disqualify Trump argue that the events of Jan. 6 didn’t rise to the level of an insurrection. And, they say, even if Jan. 6 was an insurrection, Trump didn’t “engage” in it.

“I have no truck with Trump, for whom I have low regard. But in the haste to disqualify Trump, we should be wary of too loose an interpretation of Section 3,” former federal Judge Michael McConnell, now of Stanford Law School, recently wrote.

“We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic.”

That argument misses the point, says Brianne Gorod, chief counsel of the D.C.-based Constitutional Accountability Center, which took part in an effort to disqualify former Rep. Madison Cawthorn (R-N.C.) from office because of his support for the Jan. 6 attack.

“Simply because there might be close cases in the future does not mean that we should shirk from enforcing Section 3 today in cases arising out of Jan. 6 that are not close,” she said. “If we were to let ‘slippery slope’ concerns prevent us from enforcing this provision as broadly as its text and history require, it could effectively turn this critically important provision of our Constitution into a dead letter.”

The argument is almost certain to be tested in coming months.

Fein’s group earlier this year sent letters to secretaries of state in several states reminding them of the constitutional text and including draft language for a declaration that could be used to exclude Trump from primary ballots. Other groups, such as Citizens for Responsibility and Ethics in Washington, which has represented voters in challenges to officials who supported or took part in the Jan. 6 attack, are also active.

Challenges to Trump will hit an already stressed election bureaucracy that sometimes has to decide if a candidate has submitted enough signed petitions or lives in the district they’re running to represent, but may be overwhelmed by the question of a former president’s culpability for an armed attack on the Capitol.

Typically, challenges to a candidate’s eligibility don’t come until after the candidate has officially filed for the election, and candidates often wait until close to the filing deadline to handle that task, said Muller.

In this presidential election cycle, candidate filing deadlines begin with Nevada on Oct. 16 and then multiply in November and December, meaning that a wave of challenges to Trump’s eligibility likely will start hitting election officials around the country late this year, especially in Democratic-majority states where challengers may hope for a favorable ruling that could propel the issue rapidly to the Supreme Court.

Once a challenge is filed, there’s pressure to resolve it fast so states can print their ballots.

“There’s not a lot of time,” Muller said, and the process is “not ideal.” The state officials — ballot commissions in some states, secretaries of state in others — “are not really set up for something like this.”

“But that’s the way the system is set up,” he added.