A slew of lawsuits are aimed at disqualifying former President Donald Trump from running for office in 2024, creating an increasingly unstable presidential election season.
All of these attempts rest on the argument that the “insurrection” clause of the 14th Amendment bars the former president from appearing on the ballot.
The most significant decision was handed down on Dec. 21, when the Colorado Supreme Court ruled in a 4–3 decision that President Trump couldn’t appear on the state’s ballot because he had engaged in an insurrection on Jan. 6, 2021.
The Colorado ruling appears to be triggering and renewing efforts to keep the former president off the ballot in other blue-leaning states, including New York, California, and Pennsylvania.
A lower court in Colorado had similarly ruled that President Trump engaged in an insurrection but stopped short of disqualifying him after finding that the 14th Amendment doesn’t apply to presidents.
This relatively untested provision is now set to come before the nation’s highest court.
“This case is surely destined for the Supreme Court to interpret the 14th Amendment and resolve whether Trump is disqualified from the presidency,” according to University of Michigan law professor Barbara McQuade, who left the Trump administration among a wave of resignations at the beginning of his term.
What offices that section applies to, what constitutes an insurrection, and how the section is enforced have been the subject of vigorous debate.
Embedded within those questions are a series of others that could make deciding or enforcing ballot disqualification cases especially complicated.
1. What Is an Insurrection?
Efforts to disqualify President Trump hinge partly on whether his actions surrounding the Jan. 6, 2021, Capitol breach qualify as engaging in the type of insurrection mentioned in Section 3.To answer that question, observers have drawn from historical records, federal law, and evidence surrounding Jan. 6.
According to Colorado District Judge Sarah Wallace’s reasoning, President Trump used language he knew would provoke violence on Jan. 6, 2021, but was vague enough to maintain plausible deniability. She said that satisfied Section 3’s requirement that an individual “engaged in insurrection or rebellion.”
Some, however, have questioned that line of reasoning given that none of the Jan. 6 defendants, nor President Trump himself, has been charged with violating federal law regarding an insurrection.
“They require basically an intent to try to frustrate or subvert the government,” he said.
There are additional questions as to whether the 14th Amendment defines insurrection the same way federal law does, and whether federal law and the 14th Amendment require the same level of proof to establish that individuals are guilty of insurrection.
Under the 14th Amendment, meeting the threshold of “insurrection” is “an extraordinarily high bar,” according to Roger Severino, vice president of domestic policy at The Heritage Foundation. He also served in the Health and Human Services Department under President Trump.
“I didn’t see anything sufficient to justify such an incendiary charge,” Mr. Severino told The Epoch Times.
He said the reference to insurrection in the 14th Amendment came about after invasions of the North during the Civil War.
During the Civil War, “you had armed invasions of the North ... that’s what insurrection was referring to in the 14th Amendment,” he said.
Horace Cooper, senior fellow with the National Center for Public Policy Research, who formerly taught constitutional law at George Mason University, said the target of the amendment “was specifically the Confederacy.”
“Their target was not anyone who supported the French in the French–Indian War. Their target was not anyone who supported the British in the British–American War. Even though the language isn’t written in a way to limit those, the rationale was the Confederacy,” he said.
Still, some scholars have said that President Trump has satisfied the 14th Amendment’s requirements for engaging in an insurrection.
2. Is Trump an ‘Officer of the United States’?
Judge Wallace refrained from disqualifying President Trump because, she said, even if he committed an insurrection, she didn’t have enough evidence to definitively say he was the type of “officer” that the 14th Amendment prohibits from engaging in an insurrection.Hans von Spakovsky, a former member of the Federal Election Commission, has argued that two prior Supreme Court decisions contain language indicating that “officers” of the United States don’t include presidents.
More specifically, both Free Enterprise Fund v. Public Company Accounting Oversight Board and United States v. Mouat define officers as appointees of the president and others.
Washington University law professor Andrea Katz disagreed.
“You can find cases that have held certainly to the contrary,” she told The Epoch Times, pointing to Lucia v. Securities and Exchange Commission.
Quoting a prior court decision, Supreme Court Justice Elena Kagan said in 2018 that an officer “must occupy a ‘continuing’ position established by law, and must ‘[exercise] significant authority pursuant to the laws of the United States.’”
Ms. Katz said that “it seems like both common understanding—the text of the Supreme Court, and the legislators’ understanding in drafting the 14th amendment—was that the president was going to be covered by this language.”
3. Can Courts Enforce Section 3?
Even if it were clear that Section 3 included President Trump’s conduct, questions remain as to whether courts can remove him from the ballot.The answer to those questions could depend on how much authority state laws grant their secretaries of state. It could also depend on how Congress describes the events of Jan. 6, 2021.
The 14th Amendment is different from other amendments in that it grants Congress power over how the provisions apply.
Section 5, for example, says Congress “shall have power to enforce, by appropriate legislation, the provisions of this article.”
Congress could theoretically provide further clarification for what the 14th Amendment means in practice when it refers to “engage in an insurrection.”
Colorado’s Supreme Court justices held that “Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach, and Section Three is, in that sense, self-executing.”
Ms. Katz suggested that the U.S. Supreme Court could also halt decisions in President Trump’s 14th Amendment cases pending more clarity from Congress. This could include stating whether the events of Jan. 6, 2021, could be considered an insurrection and whether President Trump’s actions constituted engaging in one under the 14th Amendment.
Mr. Cooper similarly said that the U.S. Supreme Court was “highly unlikely” to weigh in on whether President Trump engaged in an insurrection.
“The Supreme Court does not desire to own the question: ‘Does the behavior that people have seen of Donald Trump constitute insurrection?’ They do not wish to own that,” he said.
Some have argued that Congress already resolved questions surrounding President Trump’s culpability when it tried him in the U.S. Senate for the events related to Jan. 6, 2021. That trial was based on the House’s filing an article of impeachment for “incitement of insurrection”—something the Senate ultimately failed to uphold with 60 votes.
“Is some local, county, [or] state judge somewhere going to substitute their judgment for the Senate?” Mr. von Spakovsky said. “I mean, that makes no sense whatsoever.”
The Senate’s vote has prompted President Trump’s legal team to argue that his Washington trial being prosecuted by special counsel Jack Smith is unconstitutional because it effectively tries him a second time for the same offense.
Section 3 says Congress can “remove such disability”—an insurrection-related disqualification—with a two-thirds vote in the House and Senate.
“In 1872, Congress did exactly that,” Mr. von Spakovsky said. “They passed an amnesty act that got rid of Section 3 with only a couple of exceptions—one of the exceptions being anybody who had served in Congress just before and during the Civil War.”
He said that in another amnesty act in 1898, Congress eliminated the remaining exceptions.
“There’s a very strong historical argument that Section 3 legally doesn’t even exist anymore,” he said.
Not all scholars agree. Mr. Baude and Mr. Paulsen argued in their paper that Congress hasn’t deactivated Section 3.
4. Who Can Sue to Disqualify Trump?
Several of the lawsuits seeking to disqualify President Trump have come from a long-shot Republican presidential candidate, John Anthony Castro, who has said he doesn’t expect to win the 2024 presidential election.In Arizona, a federal judge dismissed Mr. Castro’s lawsuit, saying that it lacked standing, as it failed to show that he was personally affected in a way that would allow him to bring a lawsuit against President Trump.
Judge Douglas Rayes held that although Mr. Castro was likely to appear on Arizona’s ballot, that prospect didn’t “convince the court that Castro is genuinely competing with Trump for votes or contributions, or that he has any chance or intent to prevail in that election.”
The Colorado case, meanwhile, stemmed from a group of voters.
The majority in Colorado’s Supreme Court decision allowed the suit, but the dissent argued that the mechanism by which they brought the case was flawed.
Related to courts’ enforcement powers is how state law allows judges to review decisions by secretaries of state. This can vary according to state, meaning that voters challenging President Trump may be more or less successful in certain states.
In her dissent, Colorado Supreme Court Justice Maria Berkenkotter argued that her state’s voters didn’t show that they had a “cognizable claim for relief.”
She and the other two dissenting justices held that their colleagues had read the Colorado election code too broadly.
The plaintiffs in this case sought to prevent Secretary of State Jena Griswold from placing President Trump on the state’s Republican primary ballot.
More specifically, it requires that the challenge be brought five days after the candidates’ filing deadline, while the court must hold a hearing within five days and issue its conclusion within 48 hours of the hearing.
Justice Brian Boatright said in his dissent that the legal timeline was too constricted for a case such as President Trump’s.
“It is no mystery why the statutory timeline could not be enforced: This claim was too complex,” he wrote. “The fact it took a week shy of two months to hold a hearing that ’must' take place within five days proves that section 1-1-113 is an incompatible vehicle.
“Dismissal is particularly appropriate here because the Electors brought their challenge without a determination from a proceeding (e.g., a prosecution for an insurrection-related offense) with more rigorous procedures to ensure adequate due process.”
What that means in practice was disputed by Justice Berkenkotter.
“Did the General Assembly intend to grant Colorado courts the authority to decide Section 3 challenges? Based on my reading of [Colorado law], I conclude that the answer to this question is no,” she wrote.
She went on to argue that “the term ‘federal law’ [in Section 1-4-1201] is ambiguous at best.”
After discussing some of the legislative history, she concluded that “the term ‘federal law’ is most certainly not an affirmative grant of authority to state courts to enforce Section 3 in expedited proceedings under the Election Code.”
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