Efforts are underway in numerous states to keep former President Donald Trump off the ballot in 2024, and the challenges to his eligibility have plunged the courts into unfamiliar territory as they seek to navigate the application of a little known constitutional provision ratified in 1868.
Closely watched disputes in Colorado, Minnesota and Michigan have been dismissed by judges there, but voters seeking Trump’s removal from the primary and general election ballots under Section 3 of the 14th Amendment have vowed to continue their fights, raising the possibility with each stage of proceedings that the Supreme Court will be asked to intervene.
“We are in uncharted waters. It’s very unpredictable,” Eric Segall, a law professor at Georgia State University, told CBS News. “Whatever happens in state court, the Supreme Court, and on the actual merits of this and the procedures we’re using, we’re not finding the law, we’re not interpreting the law, we are creating the law.”
Known as the disqualification clause, Section 3 of the 14th Amendment states that no person shall hold office if they have “previously taken an oath as a member of Congress, or as an officer of the United States” and engaged in insurrection or rebellion against the Constitution.
The clause was enacted in 1868, in the wake of the Civil War, to keep former Confederate civil and military officeholders from holding state or federal office again, and was largely forgotten until the Jan. 6, 2021, assault on the U.S. Capitol.
In the wake of the Jan. 6 attack, when a mob of Trump’s supporters breached the U.S. Capitol in an attempt to stop Congress from tallying state electoral votes, groups of voters in Georgia and North Carolina argued that GOP Reps. Marjorie Taylor Greene and Madison Cawthorn were ineligible to run for reelection under Section 3.
An administrative law judge in Georgia found there was not enough evidence that Greene engaged in insurrection and should be kept off the ballot there, while Cawthorn’s defeat in his primary ended the challenge to his eligibility.
But in New Mexico, a state court judge ruled that a county commissioner had to be removed from his post and is barred from holding any federal or state office under Section 3 because of his participation in the Jan. 6 riot.
Though the cases did not involve Trump, and Section 3 has never been invoked against a former president, they set important legal precedent, said Ron Fein, legal director of Free Speech For People, which brought the case against Cawthron.
“All three of these are important legal building blocks and precedents that we continue to cite in our case and [Citizens for Responsibility and Ethics in Washington] cites in Colorado and that help establish the legal framework that we’re arguing in this case against Trump,” Fein told CBS News.
Free Speech For People filed the legal challenges to Trump’s candidacy in Michigan and Minnesota on behalf of voters in those states and is asking courts to block their secretaries of state from putting Trump on the 2024 GOP primary and general election ballots.
“We cannot allow our democracy to be extorted by threats of violence by unsuccessful political candidates like Trump,” Fein said. “And the lesson that the framers of the 14th Amendment learned at the price of hundreds of thousands of lives was that someone who took an oath to support the Constitution and broke that oath and engaged in insurrection is too dangerous for public office because if they are allowed back into office, they will do the same or worse.”
The ongoing disputes
Cases brought by voters and advocacy groups that seek to disqualify Trump from running in 2024 have been brought in more than half of the states, including the cases that have gone to court in Colorado, Michigan and Minnesota, according to a compilation from Lawfare.
In Colorado, a state court judge in Denver said in a ruling Friday that Section 3 does not apply to Trump and ordered him to be placed on the presidential primary ballot. Judge Sarah Wallace wrote in her 102-page decision that Trump “incited an insurrection on January 6, 2021 and therefore ‘engaged’ in insurrection within the meaning of Section Three of the Fourteenth Amendment” — the first time a court has ever made such a finding — but she said was “unpersuaded” that Section 3 applies to the president under the phrase “officers of the United States.”
In Minnesota, the state supreme court tossed out a case seeking to keep Trump off the ballot for the Republican primary because it is an “internal party election to serve internal party purposes,” but said Minnesota voters could pursue their case after the state’s March 5 primary as to the general election ballot.
And in Michigan, a judge on the state Court of Claims ruled last week that the arguments from voters there present a political question that bars consideration by the courts “at this time,” and dismissed the suit.
Voters in Michigan appealed the decision Friday and are seeking immediate review by the Michigan Supreme Court. Meanwhile, Citizens for Responsibility and Ethics in Washington, which is behind the Colorado suit, said it will file an appeal with the Colorado Supreme Court “shortly.”
Will it go to the U.S. Supreme Court?
The cases raise questions that have been a subject of debate by legal scholars in panel discussions, op-eds and law review articles — namely whether Jan. 6 was an “insurrection,” whether Trump engaged in insurrection and whether the presidency is among the offices covered by Section 3.
Wallace, the Colorado judge, wrote in her ruling that it appears the “drafters of the Section Three of the Fourteenth Amendment did not intend to include the president as ‘an officer of the United States,'” and concluded that it does not apply to Trump.
As the proceedings make their way through the courts, legal scholars generally agree that if even one state high court rules that Trump is disqualified from running for office and orders him removed from the ballot, the former president will appeal to the U.S. Supreme Court, thrusting the nation’s highest court into the center of a politically charged issue amid the 2024 campaign.
“If some jurisdictions start disqualifying him, the Supreme Court needs to weigh in,” said Richard Hasen, an expert in election law and law professor at the University of California, Los Angeles. “My dog in this fight is for finality.”
There are several issues that could give the Supreme Court an off-ramp to not deciding the merits of a case involving whether Trump is ineligible for office, but Hasen stressed that a definitive ruling from the justices would be in the nation’s interest.
“We’re going to be in a bad situation politically if this hangs over the election and people don’t know if they’re voting for a candidate who is not allowed to even hold office,” he said.
What if Trump is kept off the ballot?
Because elections in the U.S. are run by the states, legal experts predicted that there could be a situation where Trump’s name is excluded from the ballot in one state — if its high court rules he cannot hold office under Section 3 and that decision remains in force — but listed on the ballot in another.
“On the one hand, that would be very unusual to have a major party candidate who’s not on the ballot,” said Press Millen, a trial attorney who represented the voters challenging Cawthorn’s candidacy. “But on the other hand, if you look at down-ballot races, it’s not at all atypical.”
In the 2012 Republican presidential primary in Virginia, for example, candidates Newt Gingrich, Rick Santorum, Rick Perry and Jon Huntsman did not appear on the ballot, and there have been instances where the names of third-party candidates have been left off ballots in some states for general elections, such as Kanye West in Virginia, Arizona and Wisconsin in 2020.
“A state has a legitimate interest in excluding an ineligible candidate from the general election ballot, if it has to be resolved at that stage,” Fein said.
He noted, though, that it’s preferable for the issue of Trump’s eligibility to be resolved at the primary stage so GOP primary voters can choose from candidates who are constitutionally eligible to hold office.
If Trump is kept off the ballot in a state, the former president could launch a write-in campaign, though the rules for doing so differ by state.
“But the big picture is that even if he amassed a majority of votes through a write-in campaign, he would continue to be ineligible to appear on the general election ballot, and it’s not a way to evade the requirements of the Constitution,” Fein said.
