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Locked Out

It’s Time to Take Trump’s Disqualification From the Presidency Seriously

A burgeoning movement to remove the former president from the ballot in 2024 is forging ahead—with the Supreme Court as its final destination.

Michael B. Thomas/Getty Images

A movement to block former President Donald Trump from running for office again under Section 3 of the Fourteenth Amendment is suddenly gathering steam. Among the latest moves is a lawsuit filed by Colorado voters and Citizens for Responsibility and Ethics in Washington, an ethics-watchdog group better known as CREW. It seeks to force Colorado Secretary of State Jena Griswold, a Democrat, to declare that Trump is constitutionally ineligible to run for president next year because of his role in the January 6 attacks on the Capitol two years ago.

“Trump is disqualified under Section 3 because: (1) he took an ‘oath … as an officer of the United States … to support the Constitution of the United States’ on January 20, 2017; (2) the January 6, 2021 mob attack on the U.S. Capitol and the preceding mob mobilization and incitement constituted an ‘insurrection’ against the Constitution of the United States; and (3) Trump ‘engaged in’ that insurrection,” the lawsuit alleges. “It follows that Trump is constitutionally ineligible to ‘hold any office, civil or military, under the United States,’ including the Office of the President.”

Griswold, the defendant, appeared to almost welcome the lawsuit on Wednesday, noting that it could help clarify an untested area of constitutional law. “The United States Constitution bars anyone who has taken an oath to protect the Constitution from holding office if they have ‘engaged in insurrection or rebellion’ or ‘given aid or comfort to the enemies’ of the Constitution,” she said in a statement. “I look forward to the Colorado Court’s substantive resolution of the issues, and am hopeful that this case will provide guidance to election officials on Trump’s eligibility as a candidate for office.”

As I noted last month, there’s an ongoing legal debate over whether Trump meets the conditions for disqualification under Section 3. The provision dates back to 1868, when Radical Republicans in Congress sought to break the ex-Confederate stranglehold in Southern state governments. Since the United States did not face another civil war, rebellion, or insurrection until 2021, Section 3 was largely defunct after the Reconstruction era came to a close. Despite this, Trump’s actions—and the growing legal efforts to hold him accountable for them—have brought matters to a head: It’s time for public officials to start taking the disqualification efforts seriously.

Trump’s efforts to overturn the presidential election, coupled with his encouragement of a violent mob that disrupted the electoral vote count on January 6, breathed new life into the provision. While much of the attention has come from liberal legal scholars, they are not alone in suggesting that Trump may no longer be eligible to run for president. Michael Stokes Paulsen and William Baude, two of the nation’s leading originalist scholars, argued in a comprehensive law review article published last month that the provision remains in force, that no congressional action is needed to carry it out, and that Trump meets the criteria for disqualification under it.

There are signs that some officials are already thinking about Section 3. Politico reported earlier this week that multiple state election officials have discussed, both publicly and privately among themselves, how to address the disqualification question. In most states, elections are supervised by a state’s secretary of state or by a multi-member board of elections. While laws vary in the 50 states, each of those jurisdictions will have to make some sort of decision about whether Trump is disqualified under Section 3. This could be done explicitly by refusing to put him on a ballot or implicitly by keeping him on. The former would almost certainly lead to a legal challenge by Trump and his campaign; the latter is already facing the aforementioned legal challenge in Colorado. It may not be possible for state officials to evade answering the question in some way, shape, or form.

Some secretaries of state reject the idea that Trump can be disqualified outright. Georgia Secretary of State Brad Raffensperger is one of the few Republican officials with the credibility to make that argument. In 2020, he famously resisted Trump’s direct entreaties to tip the vote totals in his favor and defended the accuracy of Biden’s win in the state. He nonetheless argues that it is up to the voters to deny Trump’s presidential bid next year.

“Some legal scholars are arguing that secretaries of state should remove Donald Trump from the 2024 presidential ballot under Section 3 of the 14th Amendment, which states that a public official is ineligible for public office if he has ‘engaged in insurrection or rebellion against’ America,” Raffensperger wrote. “But Georgia law contemplates a legal process that must take place before anyone is removed from the ballot. Anyone who believes in democracy must let the voters decide.”

But Raffensperger’s rationale gets the legal question at the heart of the matter precisely backward: If the Constitution says one thing and Georgia law says something else, then Georgia law must give way to the Constitution. And as Paulsen and Baude have argued, Section 3 is self-executing, meaning that no further action is needed by Congress or by state legislatures to give it legal force. While Georgia can require a “legal process” before disqualification for state and local officials under the state constitution, it cannot supersede the Constitution’s own commands.

Moreover, Section 3 is fully consistent with basic democratic principles. The Constitution, after all, places other limits on who the voters can choose as president. (We’ll set aside the matter of the Electoral College for the moment.) Americans do not have the power to lawfully elect a president who is younger than 35 years old, or one who hasn’t lived within the U.S. for the last 14 years, or one who attained their American citizenship through naturalization. Whether the natural-born citizen requirement is a good idea is an ongoing debate, but former California Governor Arnold Schwartzenegger’s inability to run for president doesn’t undermine American democracy.

If anything, Section 3 is a bulwark of democratic principles, not a threat to them. Trump’s insurrection sought to illegally overthrow the preferred candidate of the American people and install Trump as president for a second term on fraudulent grounds. He violated his oath of office to defend the Constitution by trying to place himself above it. Denying him the privilege of running for office again is functionally no different from taking away someone’s right to own a gun after they shoot someone or suspending a driver’s license after a fatal DUI. Those who try to overthrow the republic lose the privilege of holding public office.

While state election officials’ decisions will be important, the legal challenges mean that the Supreme Court will ultimately decide whether Trump is disqualified from running for president again. It is impossible to predict how the justices would decide such a case because it is such a novel question for them to address. Like so many things about Trump’s voyage in public life, this one is constitutionally uncharted waters.

CREW’s lawsuit highlighted a case that shows just how little we know about what the court will do. Of the court’s nine members, for example, only Justice Neil Gorsuch has been involved in a case about presidential candidates’ qualifications. While serving on the Tenth Circuit Court of Appeals in 2012, then-Judge Gorsuch was part of a three-member panel in Hassan v. Colorado. The plaintiff, Abdul Karim Hassan, was a prospective fringe presidential candidate who argued that he had been unlawfully kept off the ballot. While Colorado argued that he was ineligible because he was a naturalized citizen, Hassan argued that the natural-born citizen requirement had been superseded by the Fourteenth Amendment’s citizenship clause.

Gorsuch, along with his two colleagues, disagreed. His short, two-paragraph opinion deferred largely to the lower court’s reasoning and analysis. Gorsuch and his colleague only sought to emphasize that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” Since this case involved a far more settled aspect of presidential qualifications, however, it tells us nothing about how Gorsuch might ultimately vote on a novel Section 3 claim against Trump.

Ideally, the Supreme Court would resolve this question sooner rather than later. A ruling that Trump is disqualified under Section 3 could lead to electoral chaos if it comes down midway through the GOP presidential primaries in the spring or after they have wrapped up next June. But one way or another, the court will have to address the matter, especially if the lower courts reach different conclusions about whether he can run again. That means the rest of the American political system should start thinking about the possibility that Trump, the leading GOP contender for next fall’s presidential election, might not end up on the ballot at all.