WASHINGTON — Donald Trump faces an unprecedented effort to disqualify him from being on the ballot again over his role in the Jan. 6 attack on the U.S. Capitol, raising the specter of legal chaos in the 2024 election long before voters go to the polls.
Advocacy groups have vowed to challenge Trump’s third presidential bid in multiple states under a post-Civil War measure that bars individuals from holding office if they pledged to uphold the U.S. Constitution and then “engaged in insurrection or rebellion.”
It’s a relatively untested area of law. Conflicting decisions from election officials and state and federal judges could mean Trump doesn’t appear on the ballot in every jurisdiction, leaving the outcome of the Republican primary or even the general election in limbo.
“We could have 51 jurisdictions coming out differently, really, on the same evidence,” said Marcy Kahn, a former appellate judge who led a New York City Bar Association task force to study the issue. “It really would be a constitutional crisis.”
Section 3 of the 14th Amendment, which was ratified in 1868, was drafted with ex-Confederate officeholders in mind. It took on new life after Trump supporters attacked the Capitol and tried to prevent Congress from certifying the 2020 presidential election, spurred by Trump and prominent GOP officials’ baseless claims of widespread election fraud.
An early round of efforts to disqualify Republicans who backed Trump’s “Stop the Steal” movement largely failed, but yielded court rulings with wins and losses for both sides. Those cases offered a glimpse at novel issues likely to come up in a push to stop an ex-president seeking another term.
“Every legal option is on the table,” said Donald Sherman, chief legal counsel and vice president of Citizens For Responsibility and Ethics in Washington, a nonprofit government watchdog group mobilizing to block Trump’s candidacy.
Within minutes of Trump’s announcement Tuesday night making his candidacy official, CREW and two other advocacy groups, Free Speech for People and Mi Familia Vota, put out statements reaffirming plans to try to disqualify Trump from serving.
There’s no uniform process for Section 3 ballot contests. Objections to Trump’s candidacy would unfold on a state-by-state basis before a mix of election officials and state courts. Trump could bring parallel federal court action to try to halt those proceedings. Losing parties could ask the U.S. Supreme Court to intervene.
House Democrats have pending bills to empower the Justice Department to bring insurrection disqualification cases in federal court, and one that would also allow private citizens to sue. The likelihood that Republicans reclaim the House may doom that effort for the 2024 election cycle.
“It’s pretty clear that this is necessary because people who tried to topple our government should never be put in charge of it,” said Representative Debbie Wasserman Schultz, a Florida Democrat who cosponsored one of the bills.
‘Robust and aggressive’ strategy
Free Speech for People, a nonprofit “fighting for free and fair elections,” has urged state officials to disqualify Trump and plans to contest his spot on ballots. Legal Director Ron Fein declined to specify where they would focus challenges, saying it will be in “multiple states.”
CREW similarly has pledged to pursue Trump’s disqualification. Sherman declined to offer details on CREW’s plans, saying that his organization was “prepared to pursue a robust and aggressive strategy.”
James Bopp Jr., an Indiana-based attorney who represented Republican Representatives Marjorie Taylor Greene and Madison Cawthorn against disqualification efforts in Georgia and North Carolina, was dismissive of the legal strength of Section 3 challenges to Trump’s candidacy. He accused groups of using ballot contests to drain candidate resources, generate media coverage of “scandalous and false accusations,” and disrupt elections.
Bopp, who previously advised Trump on campaign finance issues and was briefly involved in post-2020 litigation, said no one from Trump’s camp had contacted him about preparing for Section 3 contests. A Trump spokesperson did not return a request for comment.
In recent cases, courts grappled with states’ authority to enforce the insurrection disqualification, the ability of individual citizens to bring claims, the relevance of post-1868 amnesty laws, and candidates’ First Amendment and due process rights. Judges in Greene’s and Cawthorn’s cases explored whether only Congress could disqualify its own members. Some legal experts suggest it’s not settled if it applies to a former president running for re-election.
Removed from office
There’s also the question of how state officials and courts decide if Trump did, in fact, engage in insurrection. A New Mexico county official, Couy Griffin, was removed from office in a Section 3 challenge backed by CREW following his misdemeanor conviction for illegally being in a restricted area at the Capitol on Jan. 6. Griffin’s appeal to the state supreme court was dismissed this week for failing to comply with court rules. He is challenging that order.
The Justice Department and state prosecutors in Georgia have opened criminal investigations into Jan. 6; Trump hasn’t faced charges.
Trump was acquitted of “incitement of insurrection” in his second Senate impeachment trial, but his critics say that’s not legally binding in state ballot contests. He’s a defendant in unresolved civil litigation seeking to hold him liable for the violence at the Capitol.
Asked if Congress could refuse to certify a Trump electoral win on Section 3 grounds, Wasserman Schultz said she didn’t know if lawmakers “would be in a position to do that but it certainly wouldn’t be something that should be ruled out.”
‘Clean’ legal landscape
Fein expressed confidence that constitutional ballot contests are on solid legal ground. He highlighted a federal appeals court order from 2012 involving a naturalized U.S. citizen who wasn’t allowed on the presidential ballot in Colorado since the Constitution limited eligibility to “natural born” citizens. The three-judge panel, which included future U.S. Supreme Court Justice Neil Gorsuch, held that states could exclude candidates who were “constitutionally prohibited from assuming office.”
Free Speech for People’s challenges to Greene and Cawthorn didn’t keep them off midterm ballots, but Fein said court rulings from those cases could be helpful to “assuage the concerns of a secretary of state.”
Constitutional law scholars have disagreed (see here, here and here) about whether Section 3 challenges to Trump would fail unless Congress adopts an enforcement process. Josh Blackman, a law professor at South Texas College of Law Houston, pointed to an 1869 court ruling that offered support for this idea, but said it didn’t definitively settle the issue.
“The landscape for the Trump issue is very clean, there’s not much precedent and it gives a lot of these local and state officials a huge amount of discretion to try to keep him off the ballot,” Blackman said. “I think it’s going to be chaos.”
