Is Trump Barred From The 2024 Ballot By The Constitution’s Disqualification Clause?

Civil Rights Policy Brief #211 | By: Rodney A. Maggay | September 13, 2023

Photo taken from: cnn.com

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Section 3 of the Fourteenth Amendment to the United States Constitution provides:

“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.”

On January 6, 2021, rioters stormed the U.S. Capitol building during the official certification of the electoral votes that was being presided by Vice – President Mike Pence. The certification would have declared Joe Biden the winner of the 2020 election over President Donald J. Trump. President Trump had previously rallied the crowd to march to the Capitol to try to persuade the Vice – President to reject some electoral slates from certain states in order to delay certification of Biden’s win. After the crowd marched to the Capitol and demonstrated outside, they became unruly and violently entered the Capitol building. The crowd smashed windows, broke down doors and forced their way through barriers forcing a temporary suspension of the certification proceedings and forcing Members of Congress and their staff to retreat for their own personal safety. Persons in the mob were heard chanting “Hang Mike Pence!” After a few tense hours, the Capitol building was cleared and Members of Congress were escorted back inside where the certification of electoral votes continued, ultimately ending with Joe Biden being officially declared the winner of the 2020 election.

Subsequently, hundreds of persons who were part of the mob that violently entered the Capitol to disrupt the certification proceedings were criminally prosecuted and handed varying sentences, including one person being sentenced to seventeen years in prison. Since leaving office, Donald Trump has been indicted four times although only one of those concerns the events of January 6, 2001. (The other indictments are about Trump’s business dealings, his handling of classified U.S. documents and Trump’s efforts to overturn the votes in Georgia about the 2020 election.) LEARN MORE

Policy Analysis: While Donald Trump is in serious legal jeopardy on numerous charges across numerous states, a legal scenario is being actively discussed that could bar Donald Trump from appearing on the ballot in a number of states as a 2024 presidential candidate. Could Donald Trump be barred based on the U.S. Constitution’s 14th Amendment “Disqualification Clause?”

The text of Section 3 of the 14th Amendment is clear although legal scholars are split in their opinion as to whether the clause can be applied to the former President.

One legal theory states that the clause does not apply to Mr. Trump because the clause was aimed at former Confederate soldiers and politicians. The clause was added in the aftermath of the Civil War to prevent former Confederates from holding office and possibly trying to subvert the United States again if they were to become officers or politicians of the government again. The legal theory goes that since the clause was intended only for those persons in the mid – nineteenth century, the clause does not apply to anyone else. However, this is a strict reading of the text that would render the clause obsolete in today’s modern world if it only applied to persons alive in the late 1800’s.

Today, many groups in a number of states are looking to clarify the application of the 14th Amendment’s Section 3 with lawsuits, petitions and other legal avenues. In New Hampshire, Secretary of State David Scanlan recently requested legal guidance from the New Hampshire Attorney General’s Office about whether Trump can be allowed on the ballot. In Colorado, six Republicans and other voters, represented by Citizens for Responsibility and Ethics in Washington (CREW), filed a lawsuit looking to bar the Colorado Secretary of State from allowing Trump on the ballot in 2024. And in Florida, another lawsuit was brought to bar Trump from the 2024 ballot although that case was dismissed on procedural grounds. It is becoming clear that Section 3 of the 14th Amendment is going to become a focal point about whether the former President is going to have a shot at winning in 2024.

But application of the clause to Trump is still up in the air and the courts are going to have to decide, even if it goes all the way to the Supreme Court. While it is not clear how the courts will decide, some clues have begun to emerge. In New Mexico, the disqualification clause was used to remove a county commissioner from office based on his presence at the January 6th riot. This has been the only successful removal of a person from office based on the Disqualification Clause since 1869 and illustrates that the clause can be used in modern times to prohibit a person from holding office after participating in an insurrection. Additionally, that court declared that the incident of January 6th was an insurrection. That is key because some right wing news sites have tried to change the narrative by calling January 6th something else, like a peaceful protest, when it clearly was not. With a court already declaring the events of that day an insurrection, the ruling provides legal support that President Trump caused an insurrection  and makes it more difficult to evade the specific words contained in the Disqualification Clause.

However, some have pointed out that Trump has also not been charged with causing an insurrection or rebellion. His charges are only for conspiracy. If a court were to follow a strict interpretation of words, they could require a person first be charged or convicted of actual incitement of insurrection or rebellion before being barred under the Disqualification Clause. Being charged with conspiracy or rebellion are separate and distinct crimes and it is possible a court could find being charged for conspiracy, like Trump, does not meet the wording contained in the clause. Right now, this is all speculation and a court will have to weigh in and clarify how the clause applies and whether it applies to Trump or not. And in a number of states the race for legal clarification has already started and will make for an interesting side story, or maybe the main story, of the 2024 election season.

Engagement Resources:

• The Hill – good discussion from news site discussing a candidate’s eligibility under the Fourteenth Amendment.
• Politico – news site’s article on history of the Fourteenth Amendment’s Disqualification Clause.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.