The disqualification clause and efforts to keep Trump off the 2024 ballot

FAN Editor

Washington — Amid the legal troubles former President Donald Trump is facing in federal and state courts, efforts to keep him off the primary and general election ballots under a little-known provision of the Constitution are gaining traction in several states.

The legal actions invoke what is known as the disqualification clause, Section 3 of the 14th Amendment, and the provision has now been cited in two lawsuits brought by voters in Colorado and Minnesota who argue Trump is constitutionally ineligible to hold federal office because of his actions surrounding the Jan. 6, 2021, assault on the U.S. Capitol.

The suits aimed at the former president set up what are sure to be closely watched legal battles that will test the reach and force of a constitutional provision enacted in the wake of the Civil War, and the outcomes could upend the Republican primary if Trump, currently the leading candidate for the GOP nomination, is found to be ineligible to seek the White House for a third time.

Here is what you need to know about Section 3:

What does Section 3 of the 14th Amendment of the U.S. Constitution say?

Also known as the “disqualification clause,” Section 3 of the 14th Amendment states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The provision applies to those who have taken an oath to support the U.S. Constitution and either “engaged in insurrection or rebellion” against the U.S. or “give aid or comfort to the enemies” of the nation. Section 3 allows Congress to “remove such disability” by a two-thirds vote of the House and Senate.

Why was it enacted?

The 14th Amendment was passed by Congress in 1866 and ratified by the states in 1868. Enacted after the Civil War, the disqualification clause aimed to keep former Confederate civil and military officeholders from holding state or federal office.  

Has Section 3 been used before?

Section 3 was primarily used in the time between its ratification and the enactment of the Amnesty Act in 1872, which removed the prohibition from holding office for most Confederate officials and their sympathizers, according to the National Archives and Records Administration.

Posthumous relief from Section 3 was also granted by Congress to Robert E. Lee, the Confederate general, and Jefferson Davis, former president of the Confederate States of America, in 1975 and 1978, respectively, when their full citizenship rights were restored.

An 1869 case involving Caesar Griffin, a Black criminal defendant, is considered the first major judicial opinion on Section 3, according to a 2021 law review article from Gerard Magliocca, a law professor at Indiana University who has extensively studied the provision. In that case, Chief Justice Salmon Chase, serving as the circuit judge who heard cases in Virginia, held that the text of Section 3 was not self-executing and therefore could only be enforced through an act of Congress. But Magliocca said the issue of how the provision is enforced will likely be contested in court battles over Trump’s eligibility.

Section 3 has seldom been used in modern times, and never against a former president. But recently, in September 2022, a state court judge in New Mexico ruled that Couy Griffin, a county commissioner and founder of the group “Cowboys for Trump,” had to be removed from his government position and is prohibited from seeking or holding any federal or state office under Section 3. 

Judge Francis Mathew of the 1st Judicial District Court in Santa Fe cited Griffin’s participation in the Jan. 6 assault on the U.S. Capitol. He was convicted in March 2022 of illegally entering the Capitol grounds and sentenced to 14 days in prison. Griffin received credit for time served.

Magliocca said the decision “counts for something,” in that a court found that the Jan. 6 attack was an insurrection that Griffin engaged in, but noted it’s a single decision from a state trial court.

“It’d be one thing if you had a New Mexico Supreme Court opinion saying ‘yes, we think this person is disqualified because of Section 3,'” he told CBS News. “So, it counts, but it isn’t as strong an authority it would have been if it had been affirmed on appeal.”

How could it apply to former President Donald Trump?

The key questions that could determine whether Section 3 applies to Trump are whether the Jan. 6 attack on the Capitol was an insurrection, and whether Trump “engaged” in that insurrection.

Deciding whether an insurrection occurred on Jan. 6 will raise historical and practical questions looking at past insurrections and the consequences of adopting a particular definition that would apply to future disqualifications, according to Magliocca. 

“There’s going to be a historical part of it and then there’s going to be kind of the practical, ‘where is this going to lead us’ kind of discussion,” he said, noting the debate on whether Jan. 6 is considered an insurrection likely will be the key battle fought.

On the question of whether Trump engaged in insurrection, it could be difficult to narrow the scope of who did so on Jan. 6 to cover only people who were violent.

“It’s hard to see how Trump as the driver of the thing wasn’t engaged in it,” Magliocca said. “The only way you can say he wasn’t would be if you say look, in effect the only people engaged in it were the people who directly engaged in violence or destruction of property. That’s a pretty narrow definition which also would be ensnaring the followers and not the leaders.”

Conservative legal scholars William Baude and Michael Stokes Paulsen wrote in a forthcoming law review article that Section 3 is an enforceable part of the Constitution that is self-executing and does not require additional action by Congress. Trump, they found, is disqualified from future office because of his participation in the “attempted overthrow of the 2020 presidential election.”

It’s a conclusion also reached by retired Judge J. Michael Luttig, widely respected by conservatives, who, with legal scholar Laurence Tribe, wrote in the Atlantic that Trump’s actions regarding the 2020 election “place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again.”

But Trump disputes that he is ineligible to run for president, writing on his social media site Truth Social that the 14th Amendment “has no legal basis or standing” relative to the 2024 election. He called attempts to use Section 3 a “trick” and likened it to “election interference.”

Two law professors argued in a 2021 law review article that Section 3 does not apply to Trump because as president, he was not an “officer of the United States” covered by the disqualification provision.

Are there efforts underway to keep him off the 2024 primary and general election ballots?

Yes. Magliocca said attempts to render Trump ineligible will either come through lawsuits brought by voters or from secretaries of state who unilaterally make the determination, the latter of which would trigger a legal challenge brought by Trump and be the faster route.

“A secretary of state in theory today could say somewhere I think he’s ineligible, tomorrow there’s a lawsuit filed and you’re getting a fairly quick initial decision,” he said. “But the voter lawsuit, when is that going to get a hearing or decision? Not for a while.”

In August, the New Hampshire secretary of state asked the attorney general’s office to advise on the meaning of Section 3 and its potential applicability to the 2024 presidential election cycle. In response to the request, New Hampshire Attorney John Formella said Wednesday that state law doesn’t give the secretary of state “discretion to withhold a candidate’s name from the ballot on the grounds that the candidate may be disqualified under Section 3 when a candidate has not been convicted or otherwise adjudicated guilty of conduct that would disqualify” them under the clause.

A group of six Colorado voters — four Republicans and two unaffiliated — filed a lawsuit in state court on Sept. 6 arguing Trump is ineligible for the ballot in Colorado’s primary and general elections under Section 3. The suit alleges that Trump is disqualified from holding public office because of the Jan. 6 attack and asks the court to block the Colorado secretary of state from taking any action that would allow him access to the ballot.

The Colorado suit is not expected to be the only one aimed at Trump and his 2024 bid for the White House — Noah Bookbinder, the chief executive officer and president of the group Citizens for Responsibility and Ethics in Washington (CREW), which brought the case on behalf of Colorado voters, said more action in other states will be coming.

Separate from CREW, a group of eight voters in Minnesota filed a lawsuit in state court alleging Trump is constitutionally ineligible for the presidency under Section 3. 

The suit states that the events of Jan. 6 amounted to an insurrection under the provision, and the alleged attempts to reverse the results of the 2020 election in the period between Election Day and the Jan. 6 assault constituted a rebellion, as they were “an attempt to overturn or displace lawful government authority by unlawful means.”

Free Speech for People, the group behind the Minnesota lawsuit, and Mi Familia Vota Education Fund, sent letters to secretaries of state and election officials in nine states in July urging them to bar Trump from the ballot in their respective states because he allegedly can’t run for office again under Section 3.

In the letters, the groups argued states can enforce the clause without any federal legislation from Congress authorizing them to do so, and wrote the disqualification provision doesn’t require that Congress or a court adjudicate the question of Trump’s eligibility before state officials do.

“Your determination would not deprive Mr. Trump of due process of law. He can challenge an adverse determination in court,” the two groups said.

The secretaries of state and top election officials who received the letters are from Oregon, Califorrnia, Massachusetts, Colorado, Michigan, New York, North Carolina, Georgia and Pennsylvania.

Could this issue end up before the U.S. Supreme Court?

It could. Bookbinder said his group is prepared to appeal an adverse decision to the nation’s highest court. But whether the justices ultimately wade into a dispute over Trump’s eligibility could depend on the timing.

Magliocca predicted that if the Colorado case and others haven’t proceeded through state courts before the year’s end, it would be difficult for the Supreme Court to decide whether Trump is disqualified from holding office again under Section 3. 

“If you don’t have [a decision] before January, then that’s a problem because you’re going to have elections in some places where it’s unclear whether he’s eligible or not,” he said. “And then afterwards you would in effect, if you said he was ineligible, throw out votes that were already cast for him. It just creates difficulties within the Republican primary process for the other candidates.”

The Iowa Republican caucuses are slated for Jan. 15, and a date for the New Hampshire GOP primary, typically the first in the nation, has not yet been scheduled. In South Carolina, another state with an early primary, the Republican contest is set for Feb. 24.

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