Here is the text of Section 3 of the Fourteenth Amendment, in its entirety:
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. But Congress may by a vote of two-thirds of each House, remove such disability.
Last Wednesday, January 3, 2024, Donald Trump asked the U.S. Supreme Court to intervene in the Colorado decision to disqualify him from the ballot. Two days later, on January 5, SCOTUS agreed to hear the case.
The Question that SCOTUS agreed to answer is very broad and somewhat open-ended:
Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?
Unfortunately, there is a fundamental dichotomy between the text of Amendment XIV and the question before SCOTUS. The Constitution asserts, “No person shall be …[President]” and Trump’s appeal says, effectively, “Does Colorado have a right to exclude my name from the ballot?”
To resolve this dilemma, here are two additional questions I hope SCOTUS will answer, even though they weren’t explicitly asked.
- If the Fourteenth Amendment disqualifies individuals who “engaged in insurrection” from “be(ing) a Senator or Representative ...”, what happens if said insurrectionist has his name excluded from every ballot in the land — but still wins the election anyway, by way of a massive number of write-in votes?
- Even if we regard the text of Amendment XIV as supreme in such a case (of write-in ballot victory), what body will declare said ballot-winner to be disqualified from holding office, and by what process will that disqualification be carried out?
Practically speaking, removal from 50 ballots may be enough for Trump to lose the election regardless of any write-in votes, but the 14th Amendment still applies to Representatives, Senators, and other office-holders. We must not forget that Lisa Murkowski won her write-in campaign for Senator in 2010 after losing the GOP primary.
These questions, along with (3) “Who gets to decide what constitutes insurrection?” and (4) “May a state’s highest election official (typically Secretary of State) make this decision independently, or must the state’s supreme court play a role in the disqualification?” are the hanging chad questions of 2024.