(Reuters) – Some opponents argue that former President Donald Trump’s involvement in the January 6, 2021, Capitol attack qualifies as support for an “insurrection,” as defined by the 14th Amendment of the U.S. Constitution, thus preventing his return to the White House.
Let’s examine the legal theory and the unlikely prospects of preventing the front-runner for the Republican presidential nomination from appearing on the November 2024 ballot.
HOW COULD TRUMP BE DISQUALIFIED?
Certain legal experts contend that Trump’s actions on January 6 could disqualify him from the presidency. They point to his impassioned speech to supporters who subsequently stormed the Capitol in an unsuccessful attempt to prevent the certification of Democratic President Joe Biden’s election.
They invoke Section 3 of the 14th Amendment, a provision originating from the post-Civil War era, which disqualifies government officials who have participated in an “insurrection or rebellion” from holding office.
On September 6, advocacy group Citizens for Responsibility and Ethics in Washington initiated a lawsuit in Colorado seeking to prevent the state’s top election official from including Trump on the November 2024 ballot, invoking Section 3. Additional lawsuits against state election officials could emerge, sparking legal battles across all 50 states, posing a largely untested legal question with potential ramifications for federal office eligibility.
HAS TRUMP BEEN CONVICTED OF INCITING INSURRECTION?
While the House of Representatives charged Trump with inciting an insurrection on January 6 during his second impeachment, Senate Republicans narrowly secured enough votes for his acquittal.
Currently, Trump awaits trial on four criminal indictments, including two related to his attempts to overturn his alleged fraudulent defeat in the 2020 election. Importantly, he has not been charged with insurrection or rebellion.
Some legal scholars express concerns that efforts to disqualify Trump might set a worrisome precedent, enabling state election officials to unilaterally disqualify candidates based on their own interpretations of “insurrection or rebellion.” Such actions could potentially infringe upon candidates’ rights to due process and equal protection, both enshrined in the 14th Amendment.
HOW WOULD DISQUALIFICATION WORK?
Section 3 lacks a clear enforcement mechanism. Some legal experts suggest it might necessitate an act of Congress for implementation, while others argue that state election officials are obliged to apply it when considering candidates for the ballot and can be compelled to do so through court orders.
To succeed, proponents of this maneuver would need to convince secretaries of state across the 50 states, many of whom are Republicans and Trump supporters, to declare Trump disqualified or persuade judges to prohibit Trump from appearing on the ballot.
For this effort to prevail, its supporters would need to convince officials in enough Republican-leaning states to prevent Trump from receiving the 270 Electoral College votes required for victory. Such efforts would likely prompt legal challenges from Republicans.
HAS IT EVER BEEN DONE BEFORE?
Section 3 was utilized to disqualify numerous individuals from holding office after the U.S. Civil War of 1861-1865 but has remained mostly inactive since then.
In September 2022, however, the same advocacy group that sought to keep Trump off the Colorado ballot persuaded a New Mexico judge to remove a county commissioner from office due to his participation in the January 6 insurrection.
COULD IT WORK?
The prospects of this effort succeeding are slim. It would necessitate convincing or compelling election officials in states led by Trump’s Republican allies to exclude him from the ballot. Furthermore, it could trigger an enormous legal battle, ultimately decided by a U.S. Supreme Court dominated by a 6-3 conservative majority, including three Trump appointees.
HAS THE 14TH AMENDMENT BEEN IN THE NEWS LATELY?
During a standoff with House Republicans regarding the nation’s $31.4 trillion debt ceiling, President Biden in May floated the notion of employing Section 4 of the 14th Amendment to unilaterally raise the debt limit. However, he never followed through on this threat, and there were legal uncertainties surrounding the effectiveness of such a maneuver.
Read: Ex-federal prosecutor reveals why Trump’s latest legal gamble is already doomed
