Donald Trump foes pin hopes on 14th Amendment to knock him off ballot

WASHINGTON — Foes of Donald Trump are using an unconventional strategy to try to derail his third run for president: knocking him off state ballots by invoking an obscure section of the 14th Amendment that bars anyone who engaged in an insurrection from holding office. 

That rarely used constitutional measure, ratified in 1868 during the post-Civil War Reconstruction era, has taken on a new life in litigation, discussion and pressure on every state to disqualify Trump as a presidential candidate in the 2024 election.

The New York State Board of Elections and other state election authorities have received inquiries about removing Trump from their primary ballots as some Democrats and liberal groups have embraced the idea of using the 14th Amendment to force action. 

Earlier this month, Citizens for Responsibility and Ethics in Washington, D.C., a nonprofit activist group, filed a lawsuit to require the secretary of state in Colorado to remove Trump from its primary ballot, and Free Speech for People, based in Newton, Massachusetts, filed suit in Minnesota to block Trump from appearing on its primary ballot.

Both groups based their lawsuits on Section 3 of the 14th Amendment. Section 3 states that no one who took an oath to support the U.S. Constitution shall “hold any office, civil or military” if they have “engaged in insurrection or rebellion” against the United States or “given aid or comfort to enemies.”

At the end of the Civil War, Republicans in Congress wanted to prevent Confederates from regaining power, and included language to bar instigators of future insurrections or rebellions, according to University of Maryland Law Prof. Mark Graber.

“You have to be willing to use these kinds of provisions when they apply. We didn't have any insurrections for 150 years — but then we did,” said Citizens for Responsibility and Ethics executive director, Noah Bookbinder, referring to the Jan. 6, 2021 attack on the U.S. Capitol.

No one has filed a similar lawsuit in New York, according to the state Board of Elections. It would be premature because New York has not set a date for its primary.

“If individuals wish to challenge the validity of a potential candidate, there are mechanisms in place to allow for an objection to be made after the requisite ballot access period,” said Kristen Zebrowski Stavisky, the board’s Democratic co-executive director.

Trump attacked and dismissed the attempts to sideline him in next year’s election.

“This is like a banana republic. And what they're doing is, it’s called election interference,” Trump said on conservative radio host Dan Bongino’s show on Sept. 7. “Now the 14th Amendment is just a continuation of that. It’s nonsense.”

On another radio show, Trump said opponents had turned to the 14th Amendment to block him “because they know they can’t beat me.” 

Use of the 14th Amendment in the lawsuits has set off a debate among constitutional scholars about whether it applies to Trump for his actions related to the mob’s attack on the Capitol on Jan. 6, 2021, to disrupt Congress’ certification of Joe Biden’s election as president. 

Here are some of the issues that will arise in debates and litigation over the use of the 14th Amendment’s Section 3 to prevent Trump from running again: 

Was the attack on Congress and the Capitol on Jan. 6 an “insurrection or rebellion?” 

Stanford University Law Prof. Michael McConnell suggested Jan. 6 was more like a riot than an insurrection. “A riot is the use of violence to express anger or to attempt to coerce the government to take certain actions, while insurrections and rebellions are the use of violence, usually on a larger scale, to overthrow the government,” McConnell wrote in a post on The Volokh Conspiracy blog, where law professors comment on issues, that is posted on Reason magazine's website.

But conservative legal scholars William Baude and Michael Stokes Paulsen argue that Jan. 6 fits the definition of insurrection that Congress generally used when it wrote the 14th Amendment: a “concerted, forcible resistance to the authority of government to execute the laws.” Their 126-page paper is posted at the academic SSRN website and will be published next year in the University of Pennsylvania Law Review.

Does Section 3 say the president can be disqualified? 

Former U.S. Attorney General Michael Mukasey, who served from 2007-09, argued in The Wall Street Journal that Section 3 does not explicitly list the president as an elected office, and the section’s use of the term “officer … under the United States” only refers to appointed officials, not to elected ones. 

But the Congressional Research Service, as well as Baude and Paulson, cite an exchange between senators during debate over the 14th Amendment in which they agreed the term "hold any office, civil or military, under the United States" in Section 3 covered the office of the president.

During the debate in May 1866, Sen. Reverdy Johnson of Maryland asked why Section 3 excluded the offices of president and vice president by not specifically naming them. Sen. Justin Morrill of Vermont responded, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” Johnson then conceded he was wrong about the exclusion of the presidency from Section 3.

Did Trump “engage in insurrection or rebellion?” 

He didn’t, McConnell wrote. The Justice Department has not charged Trump or any of the Jan. 6 mob with insurrection, he said, and it is unfair to accuse Trump without a legal process. “I worry that this approach could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot,” McConnell wrote.

But Baude and Paulson wrote, “It is unquestionably fair to say that Trump ‘engaged in’ the January 6 insurrection through both his actions and his inaction.” They pointed to his actions to overturn the election, his rally in Washington on the day of Biden’s certification, his speech urging the crowd to “fight” and his decision to do nothing for hours to stop the mob. 

What's the ultimate goal of the lawsuits?

Citizens for Responsible Ethics and People for Free Speech say they hope their lawsuits lead to a nationwide ban of Trump from 2024 ballots.

CREW tested their legal arguments in a case against a county official in New Mexico who helped mobilize the mob and incite them to violence in Washington on Jan. 6, and won when the judge agreed with their arguments and removed him from office. 

On June 7, CREW’s legal team filed a lawsuit on behalf of six Colorado residents to compel the secretary of state to omit Trump from the primary ballot because he's disqualified under the Constitution, Bookbinder said.

A Colorado law says the secretary of state has a duty to exclude somebody who's not qualified from the ballot, and that also allows citizens to go to court to challenge a candidate they believe is unqualified, he said. 

“We believe that if our case moves through the state courts in Colorado,” said CREW’s legal director, Donald Sherman, “it will ultimately reach the U.S. Supreme Court, which will likely issue a decision that binds all state courts and officials.” 

Mixed views on blocking Trump from the ballot

Rep. Jamie Raskin (D-Md.), who led the prosecution in the second Trump impeachment trial in 2021, and some other Democrats support efforts to knock Trump off ballots. Other Democrats oppose that tactic, saying Trump, beset by four criminal trials next year, would be the easiest GOP candidate to beat. Most Republicans oppose use of the 14th Amendment to disqualify Trump.

Brad Raffensperger, the Georgia secretary of state who rejected Trump's pleas for more votes in the 2020 presidential election, told reporters in a statement that "I have been clear that voters are smart and deserve the right to decide elections."

University of Virginia political scientist Larry Sabato said use of the 14th Amendment ballot challenge is a legitimate way to keep Trump out of the White House, but said an electoral defeat of Trump would be the best outcome.

"Trump ought to be defeated by a vote of the people," Sabato said, "and it should happen in a transparent election that has the confidence of the electorate on both sides."