Efforts to Prevent Trump’s Inclusion on 2024 Ballots Utilizing the Constitution’s ‘Insurrection’ Clause

32

In the midst of the ongoing dominance of former President Donald Trump within the Republican presidential primary, a significant narrative has emerged. Several liberal groups, coupled with an expanding cohort of legal experts, posit that an infrequently employed clause in the Constitution should effectively bar him from assuming the presidency once again following the unsettling events of January 6, 2021, marked by the assault on the U.S. Capitol.

The 14th Amendment, a cornerstone of post-Civil War constitutional reform, institutes a prohibition against any individual who has previously taken an oath to uphold the Constitution and subsequently engaged in “insurrection or rebellion” against it from holding office. A mounting number of legal scholars assert that this clause applies to Trump, citing his involvement in endeavors aimed at overturning the outcome of the 2020 presidential election, alongside his encouragement of his supporters to storm the U.S. Capitol.

In response to these concerns, two progressive nonprofit organizations have vowed to initiate legal challenges in the event that state election officials include Trump on the ballot despite these contentions.

This initiative is poised to catalyze a cascade of lawsuits and appeals across various states, culminating in potential hearings before the United States Supreme Court. Such a scenario could feasibly unfold during the heat of the 2024 primary season, further adding to the intricate legal landscape of a nomination process that is already grappling with the front-runner’s involvement in four separate criminal trials.

As the Republican Party prepares to embark on the selection of their nominee, commencing with the Iowa caucuses on January 15, the pressing question arises: will these cases be under active consideration during the primary season? Gerard Magliocca, a distinguished law professor at Indiana University, underscores the likelihood of these legal proceedings becoming a salient factor during the primaries, underscoring the potential divergence of outcomes across different states prior to the Supreme Court’s ultimate verdict. This prospect is particularly notable, as the prospect of Trump’s eligibility could be evaluated on a state-by-state basis.

While the bulk of these legal contests are not anticipated to commence until October, coinciding with the period when states finalize their ballots for the upcoming primary, the discourse has recently garnered additional traction. This momentum stems from an article within the esteemed University of Pennsylvania Law Review, authored by prominent conservative legal scholars William Baude and Michael Paulsen. In their comprehensive analysis, the authors contend that Trump’s inclusion on the ballot should be barred based on the stipulations present within the third section of the 14th Amendment.

This particular section of the Amendment imposes restrictions on individuals, encompassing those within Congress, the military, and federal and state offices, who had earlier sworn an oath to uphold the Constitution but subsequently “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Within the pages of their forthcoming article, Baude and Paulsen confidently assert the clarity of their interpretation. Their perspective centers on the notion that adhering to Section Three of the 14th Amendment inherently implies the exclusion from present or future office of those who, in the wake of the 2020 election, endeavored to undermine lawful governmental authority under the Constitution.

The gravity of this matter was underscored during a recent Republican presidential debate in Milwaukee, where former Arkansas Governor Asa Hutchinson emphasized that Trump’s eligibility could be potentially disqualified under the prevailing rules and the Constitution.

A watershed moment materialized in 2021, as the nonprofit organization Free Speech For People dispatched letters to the top election officials in all 50 states, urging the removal of Trump from any potential presidential candidacy. The organization’s legal director, Ron Fein, underscores the fact that after an extended period of silence, officials have begun to actively deliberate this matter.

Fein underscores that the framers of the 14th Amendment gleaned a crucial lesson from history: once an individual who has breached their oath of allegiance through insurrection subsequently engages in such acts, reinstating them to a position of power becomes an untenable proposition.

The intricate web of legal complexities was spotlighted when, in the state of Arizona, Secretary of State Adrian Fontes expressed a sense of constraint due to a ruling issued by the state’s high court. According to this ruling, only Congress holds the authority to disqualify an individual from Arizona’s presidential ballot. While Fontes, a Democrat, criticized this ruling as being “dead, flat wrong,” he communicated his intention to abide by it.

In scenarios where Trump appears on the Arizona ballot, those contesting his eligibility could still pursue legal action in federal court with the aim of removing him.

In the meanwhile, other secretaries of state are cautiously navigating this intricate legal terrain. Michigan Secretary of State Jocelyn Benson, a Democrat, articulated that valid legal arguments are being constructed in favor of preventing Trump from featuring on the ballot. She acknowledges active discussions among her counterparts, particularly those in battleground states.

Brad Raffensperger, the Republican secretary of state in Georgia, known for withstanding pressure from Trump’s efforts to overturn the 2020 election results in the state, posits that the resolution of this issue should be left to the voters’ discretion. He maintains that as Georgia’s Secretary of State, he is unequivocal in his stance that voters possess the acumen required to determine election outcomes.

As New Hampshire’s Secretary of State’s office became inundated with inquiries regarding this matter, Anna Sventek, a spokesperson, noted a surge of interest on the subject. This surge coincided with a misinformed assertion made by a conservative figure that the state was on the cusp of excluding Trump from the ballot.

Recently, an outside-the-box Republican presidential contender from Texas, John Anthony Castro, submitted a complaint in a New Hampshire court, contending that the 14th Amendment inherently prohibits Trump from featuring on the state’s ballot.

Anticipating the impending legal showdowns, more substantial legal resources are expected to be marshaled. However, Michael McConnell, a conservative legal scholar from Stanford University who remains impartial towards Trump, emphasizes that the case isn’t an open-and-shut matter. McConnell raises pertinent questions about the provision’s applicability to the presidency, as it isn’t specifically enumerated within the 14th Amendment. This section of the Amendment addresses individuals who serve as “elector of president and vice president.” Additionally, he underscores the ambiguity surrounding the classification of the January 6 attack as an “insurrection” under the purview of the law, vis-a-vis a less legally fraught event such as a riot.

Amid these intricate considerations, McConnell is equally concerned about the potential political precedents that could arise if Trump is ultimately precluded from state ballots. The implications extend beyond Trump’s case, with every future election involving candidates who have expressed support for activities that obstruct law enforcement potentially falling under similar scrutiny.

The 14th Amendment, ratified in 1868, indeed played a pivotal role in securing civil rights for emancipated slaves and eventually extended its protection to all individuals within the United States. Concurrently, it was utilized to preclude former Confederate officials from gaining entry into Congress and asserting authority over the very government they had previously rebelled against.

While the Amendment affords Congress the power to rescind this prohibition, such an action occurred only once in 1872. Thereafter, the provision languished in relative obscurity. However, a resurgence was witnessed last year when, for the first time since the 1919 incident involving a socialist congressman, a New Mexico judge invoked the clause to bar a rural county commissioner who had participated in the January 6 Capitol breach from assuming office.

Should any state move to disqualify Trump from running, it’s anticipated that his reelection campaign would mount a legal challenge, potentially escalating the matter to the U.S. Supreme Court. Conversely, if no state bars him, two nonprofit organizations—Free Speech For People and Citizens for Responsibility and Ethics in Washington—are likely to mount a challenge against his inclusion on the ballot.

A paramount necessity is that the highest court in the land resolves this contentious issue before the general election. Edward Foley, a law professor at The Ohio State University, underscores the imperative of such a resolution to avert potential democratic crises. The concern lies in the possibility of a scenario where Trump secures victory but his eligibility remains unresolved, prompting Democrats to obstruct his inauguration on January 6, 2025.

Advocates for invoking the 14th Amendment concur, asserting that the rationale is unequivocal. Noah Bookbinder, President of Citizens for Responsibility and Ethics in Washington, aptly compares this endeavor to the requisites of a president being 35 years of age and a natural-born citizen. He underscores the importance of ensuring that those who have orchestrated an uprising against the government are precluded from returning to power.

Frequently Asked Questions (FAQs) about Constitutional Challenge

More about Constitutional Challenge

• 14th Amendment to the U.S. Constitution
• Efforts to Prevent Trump’s Inclusion on 2024 Ballots
• Free Speech For People
• Citizens for Responsibility and Ethics in Washington
• U.S. Supreme Court
• History and Application of the 14th Amendment