A pro-Trump mob breaks into the U.S. Capitol on Jan. 6, 2021 in Washington, DC. (Win McNamee/Getty Images).
Some scholars say a little-known, Civil War-era provision in the U.S. Constitution should prohibit former President Donald Trump from appearing on state ballots in next year’s presidential election. But it seems increasingly unlikely that he will be disqualified.
Courts in Colorado, Michigan, New Jersey and elsewhere are considering whether Trump engaged in insurrection on Jan. 6, 2021, and should, therefore, be kept off the 2024 primary and general election presidential ballots. But two months before the first primary, it’s a question with no clear consensus among legal scholars, and one that state election officials have been hesitant to weigh and that courts have been reluctant to entertain.
“It’s only going to have real meaning if it goes to the courts,” said David Becker, founder and executive director of the Center for Election Innovation & Research, a nonpartisan organization that advises local election officials nationwide.
“There’s also a very understandable reluctance of courts to put themselves between the voters and their choices,” he said. “And there’s going to be a very, very high bar that needs to be met for a court to say we’re going to take this choice out of the hands of voters.”
Last week, the Minnesota Supreme Court dismissed a lawsuit from a left-leaning organization that sought to keep Trump off the state’s GOP primary ballot next year. But the ruling came down to a technicality, as the justices noted that there is no state law that restricts political parties from offering an ineligible candidate for higher office.
Notably, the ruling did not address the constitutional question at the core of the argument: whether Trump violated a provision of the 14th Amendment that prevents those who “engaged in insurrection or rebellion” from holding public office when he stoked a mob that overran the U.S. Capitol on Jan. 6, 2021.
In writing for the Minnesota court, Chief Justice Natalie Hudson said the ruling left open the possibility that a new lawsuit could keep Trump off the general election ballot.
While he is disappointed by the ruling, Ron Fein, legal director for the petitioner, the Massachusetts-based advocacy group Free Speech For People, told Stateline the legal fight is far from over and left open the possibility of further legal action.
These legal fights are not just about a technicality in the Constitution, he said; it’s a post-Civil War provision added “after a bloody lesson learned at the cost of hundreds of thousands of lives.” The lesson, he said, is “that if someone breaks their oath to support the Constitution and then rebels against it, then if they are allowed back into power, they will do the same again, if not worse.”
Steven Cheung, a spokesperson for Trump, said in a statement to the press that these “ballot challenges are nothing more than strategic, un-Constitutional attempts to interfere with the election.” The former president denies any wrongdoing on Jan. 6, 2021, and he has not been charged with insurrection, his allies have noted.
Ongoing cases
Police clash with Trump supporters during a riot at the U.S. Capitol on Jan. 6, 2021 (Alex Kent/ For the Tennessee Lookout).
Several cases around the country remain in motion.
In Colorado, a case brought by the nonprofit Citizens for Responsibility and Ethics in Washington concluded oral arguments earlier this month. A Denver District Court judge is expected to issue a ruling by Nov. 17.
Two Michigan lawsuits, one of which was brought by Free Speech For People, are ongoing. There is another case in New Jersey, brought by a voter.
However, other cases have been stopped before reaching trial.
In Florida, a U.S. district judge dismissed a lawsuit in August, arguing the plaintiffs lacked standing because they had not suffered injury. A New Hampshire federal judge last month dismissed a similar case to remove Trump from the state’s presidential primary ballot, also finding the plaintiff lacked standing and noting the case presented a political question, rather than a legal one.
The efforts to disqualify Trump, citing Section 3 of the 14th Amendment of the U.S. Constitution, began in earnest this summer, after groups, including Free Speech For People, began pressuring secretaries of state, who run state election systems, to keep him off the ballot.
Around the same time, legal scholars from both ends of the political spectrum began a public push to justify invoking the clause, which hasn’t been used since the Reconstruction period after the Civil War.
These court proceedings are new territory and it’s putting a lot of pressure on judges to decide on a question of unsettled law, said Derek Muller, a professor at Notre Dame Law School and author of an amicus brief on the Minnesota case that did not side with any party.
“There’s just a lot of uncertainty because of the complexity and novelty of these claims,” Muller said in an interview with Stateline. “We just don’t necessarily know where it’s going to go.”
Reluctant courts
Police confront pro-Trump rioters at the U.S. Capitol on Jan. 6, 2021 (photo by Alex Kent).
The courts have thus far shown a reluctance to interfere with the electoral process, said Marshall Tanick, a lawyer in Minnesota’s Twin Cities who specializes, in part, in constitutional law. He added that the insurrection argument to keep Trump off the ballot is a challenging one to make since it’s complex and could be seen as disenfranchising voters.
The case in Minnesota was “a trainwreck,” Tanick said. Not only did the petitioners wait too long to file in September, but justices decided on the petition after hearing only 70 minutes of oral arguments, instead of a trial with evidence and witnesses, as in Colorado.
The Colorado case was “obviously much more developed,” he said, and has a better chance at succeeding. But, he added, if that case succeeds and eventually makes its way to the U.S. Supreme Court through the appeals process, the conservative majority is not likely to go along with removing Trump from the ballot.
“These cases are going to show that the reality here is a lot different than the academics’ ruminations,” Tanick said.
It sets an “extremely dangerous” precedent to have judges decide who can appear on a ballot, said Josh Blackman, a professor at South Texas College of Law Houston, who co-authored a paper that argued the insurrection clause does not apply to Trump because he is not an “officer of the United States,” as the language of the 14th Amendment reads.
“What we’re talking about here is telling people that you can’t vote for the candidate of your choice,” he told Stateline. “This would be the single biggest disenfranchisement in modern history.”
Both Democratic and Republican secretaries of state also have been reluctant to weigh in on Trump’s eligibility.
Georgia Republican Secretary of State Brad Raffensperger wrote in a Wall Street Journal op-ed that “anyone who believes in democracy must let the voters decide.” He added doing otherwise would embolden Trump’s claims of a “rigged” election process. Similarly, Arizona Democratic Secretary of State Adrian Fontes said in October he does not have the authority to keep Trump off the ballot.
State election officials have acted “incredibly prudently,” said Becker, of the Center for Election Innovation & Research.
While he said there are strong arguments for disqualifying Trump from the ballot because he “engaged in insurrection” during the 2021 riot at the U.S. Capitol, this isn’t a “cut-and-dry” case, such as ruling whether a 23-year-old is too young to run for president.
Regardless of how the cases are determined in several states, he said, it is crucial that the appellate process moves quickly enough to get the question into the hands of the U.S. Supreme Court. The legal question is important to resolve before voters start casting ballots in the presidential primaries early next year, both for election officials who must design and print ballots and voters who will be making their decision, he said.
Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: info@stateline.org. Follow Stateline on Facebook and Twitter.
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