Hard as it currently is for many Americans to believe, there is a meaningful possibility (based on a constitutional argument that is very strong) that Donald Trump’s name will be removed from presidential-election ballots in one state—or in a whole bunch of them—in 2024.
Contrary to a fair amount of misinformation you may have seen online, Trump’s disqualification under the Fourteenth Amendment to the U.S. Constitution would not require him to be convicted of any crime. Indeed, there is no guarantee that there would even need to be a trial under the relevant state-law procedural standards.
If you’d like to see the procedural issues examined by a litigator with a couple of decades of experience in this kind of litigation, read on.
Hi. I’m Rieux, a Kossack since 2004. I’m an attorney who has been litigating constitutional issues in state and federal courts for a bit over twenty years now (I once wrote a diary about a certain memorable experience I had in law school), and I think I can contribute to public understanding of a particular constitutional issue that has been in the news quite a bit lately: the question of whether Donald Trump should be disqualified from appearing on election ballots in the Presidential race in 2024 pursuant to Section Three of the Fourteenth Amendment to the U.S. Constitution.
You might have heard that a New Mexico county commissioner (who also happened to be a whackjob who led the “Cowboys for Trump” organization and participated in the January 6, 2021 attack on the U.S. Capitol) was removed from office one year ago this week on the grounds of Section Three. You may also have heard that various prominent legal scholars—among them a pair who are members of the right-wing Federalist Society—have argued in print that Trump is and should be disqualified from public office under Section Three. Finally, you may be aware that the first major entry in what promises to be a long list of lawsuits seeking to remove Trump from ballots was filed on Wednesday in Colorado. (Less well-crafted suits have been filed in New Hampshire and Florida, too.) Things are starting to happen, and they will inevitably ramp up from here over the coming months.
I’ve seen a lot of misinformation online about these legal issues and (especially) the procedural aspects of the Section Three litigation that is definitely coming in our near future, so I thought the DKos community might benefit from a diary providing some basic information.
The Disqualification Section
Section Three of the Fourteenth Amendment, which was part of the post-Civil War amendments that were ratified in the late 1860s, provides as follows:
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.
You’re welcome to dive into the above text if you’d like, or to read the expert analyses from the Federalist Society guys (William Baude and Michael Stokes Paulsen) or from the also-prestigious duo of conservative retired federal court of appeals judge J. Michael Luttig and progressive Harvard Law professor Laurence Tribe. Suffice it to say that the merits of the case for disqualifying Trump from public office under Section Three are very strong.
But what I want to concentrate on, again, are the procedural aspects of how this works—and for that purpose, an even better set of readings are the substantial number of court decisions that have interpreted and applied Section Three in the context of cases involving insurrectionists who subsequently sought public office.
There is Plenty of Court Precedent Applying Section Three, and It Answers a Lot of Questions.
One misconception that I’ve seen online is the notion that disqualifying a candidate for office under Section Three is some kind of untested, unprecedented act in American history. This notion is nonsense. As Citizens for Responsibility & Ethics in Washington (CREW), the progressive nonprofit organization behind this week’s Colorado suit, demonstrates in materials posted on its website, Section 3 has blocked thousands of would-be elected officials from taking office during the 150-plus years that it has existed, and a small fraction of those individuals’ cases have managed to find their way into American courts. The published court decisions in those cases are highly educational.
Most obviously, one year ago this week a district court in New Mexico removed January 6 insurrectionist Cuoy Griffin from his position on the Otero County Board of Commissioners pursuant to Section Three. Judge Francis J. Mathew’s decision in the case is a vital read, not least because it (1) provides the crucial legal standards that apply in Section Three cases and (2) cites some of the several prior cases that provide clear precedent for any court or executive official evaluating a Section Three disqualification matter. (The decision also provides specific elements for courts to use in the determination of whether a would-be candidate has taken part in an insurrection.) Several questions that seem to be confusing a significant number of folks at the moment are actually well-settled matters of Section Three precedent—and the New Mexico decision addresses some of the more important ones.
Judge Mathew explains: American courts have uniformly held for more than 150 years that the determination of whether a candidate is rendered ineligible for public office under Section Three is a straightforward question of the candidate’s qualifications—a question that’s not categorically any different than the determination of whether (for example) a presidential candidate is 35 years old, a natural-born citizen of the United States, or a resident of the United States for at least 14 years.
This has far-reaching implications, especially for the procedures that will be required to remove Trump from ballots. Perhaps the most important one is that Section Three disqualification, as the New Mexico court put it, “is not a criminal penalty”; no “criminal conviction (for any offense) [is] a prerequisite for disqualification. Indeed, neither the courts nor Congress have ever required a criminal conviction for a person to be disqualified under Section Three.” (Emphasis added.)
And that is, as the New Mexico court pointed out, the unanimous conclusion of every court that has examined the issue. For example, in Louisiana ex rel. Sandlin v. Watkins, the Louisiana Supreme Court removed a former-insurrectionist state judge from state office despite the fact that the judge had never been convicted of any crime. In Worthy v. Barrett, the North Carolina blocked a duly elected county sheriff from taking office because he’d engaged in an insurrection—even though he’d never been convicted of anything. And in In re Tate, the North Carolina court also blocked a duly elected judicial district solicitor from taking office based on a simple civil finding that he’d participated in an insurrection, without any criminal conviction.
Disqualification under Section Three of the Fourteenth Amendment has nothing to do with criminal convictions, and that’s an important thing to keep in mind.
The Civil and Administrative Universe(s)
So, again, the determination that Donald Trump engaged in an insurrection is categorically and procedurally no different than the determination that he is a natural-born American citizen; both are straightforward applications of law to fact. And, crucially, within state governments both courts and executive-branch officials make formal determinations that involve applying law to fact all the time. When courts do it in a non-criminal context, it’s called civil litigation; when executive officials do it, it’s administrative law. (And sometimes, though not always, determinations made through administrative law are the products of full-blown adversarial proceedings that look a lot like civil litigation in an actual court.)
Neither civil-court nor administrative-law proceedings give a party in Trump’s position anywhere near the level of procedural protections that criminal prosecutions provide to a defendant who has been accused of a crime. For example:
- The standard of proof in civil and administrative proceedings is generally “the preponderance of the evidence,” which is substantially lower than the criminal “beyond a reasonable doubt” standard;
- A defendant does not necessarily have the right to have his case heard by a jury in civil court and (to my knowledge) never does in an administrative proceeding;
- Hearsay evidence is much more frequently admitted in administrative proceedings than in criminal ones; and
- A defendant’s invocation of his Fifth Amendment right against self-incrimination can generally be held against him in both civil court and administrative proceedings.
Finally, and most significantly for our current purposes, defendants in civil and administrative proceedings are not guaranteed a trial—that is, a contested evidentiary hearing—at all. If there is no “genuine issue of material fact” in a civil or administrative case (i.e., if there is no fact issue that both (1) makes a difference for a legal question the forum must answer and (2) is subject to a genuine dispute between the parties), the judge or executive official can simply make the final decision in the case based upon the facts that all parties agree on, eliminating a trial entirely. (In civil court, this is often called either “summary judgment” or “judgment on the pleadings,” though the specialized procedures that courts use in election cases sometimes involve quick and final rulings that amount to the same thing without using those labels.)
And in this case—Trump’s case—it is not clear that there are any relevant factual disputes at all. As Baude and Paulsen explain, there is an extremely strong case to be made that Trump took part in an insurrection based solely on the actions that no one disputes he carried out. If that’s true, there is no need for a trial; a judge or an administrative official can simply make a final determination on the purely legal question of whether Trump’s undisputed actions constituted participating in an insurrection.
So Who Decides Who’s Eligible to Run for Office?
At this point, the fact that American elections are run under fifty-one different legal regimes in fifty states plus the District of Columbia injects a huge amount of complexity into the entire process of dealing with Trump’s insurrectionist conduct.
How does a state determine whether a candidate is eligible to have her name placed on its ballots as a candidate for public office? There are many different answers. Some states authorize an executive-branch official (often the secretary of state) or a group of officials to reject candidates whom they determine to be ineligible. Other states do the opposite: their laws make ballot construction a purely “ministerial” act in which the executive-branch official has no authority to determine eligibility. Instead, parties that believe that a candidate who’s slated to appear on an election ballot is ineligible to run can initiate a special (usually fast-tracked) proceeding in civil court asking the court to remove that candidate’s name from the ballot.
According to the CREW-supported plaintiffs in the Section Three lawsuit filed on Wednesday, Colorado law both empowers Secretary of State Jena Griswold (a Democrat) to reject ineligible candidates from the state’s election ballots and authorizes Coloradans to file court petitions seeking to have allegedly ineligible candidates removed from those ballots. The lawsuit seeks an order from the court that would either (1) command Griswold to exercise her removal authority or (2) take Trump’s name off the March 5, 2024 Colorado presidential primary ballot under the court’s own authority.
In fact, if the plaintiffs are correct about Griswold’s unilateral legal authority (frankly, I’m not convinced) and about Trump’s ineligibility (they have a much stronger case there), the lawsuit isn't even necessary: Griswold can unilaterally take Trump’s name off Colorado’s ballots, and that’s it. It’s off.
Now, would Trump take that lying down? Of course not. He would obviously appeal, and thus in practical terms the case would inevitably wind up in court. (I don’t believe this is true in Colorado, but in some states the first appeal from an executive-branch official’s determination in a case like this would go to an administrative forum that’s still within the state’s executive branch, not to a court. That’s when all my blather about “administrative proceedings,” above, would come into play. But in any case, a court appeal would remain available as a backstop.)
As a result, we’re looking at an all-but-inevitable future of court petitions and/or appeals in all fifty states and the District of Columbia (and perhaps a federal court or three) seeking Trump’s removal from states’ ballots in both the primary and general election.
That prediction presumes, though, that the U.S. Supreme Court doesn’t short-circuit the entire thing by making a definitive ruling of its own on Section Three and Trump’s eligibility. The Supremes may very well do that—I have a few things to say about it below—but if not, it seems to me extremely likely that courts sitting in at least a few states (and in at most a lot of them) will rule that Trump is ineligible under Section Three and must therefore be removed from those states’ ballots.
So What About SCOTUS?
It’s nearly inevitable that the disqualification issue is eventually going to wind up being decided by the U.S. Supreme Court.
Conceivably they’ll want to duck it—by deciding that it’s a non-justiciable “political question” that lies outside of the jurisdiction of the federal courts (as they did, absurdly, regarding partisan gerrymandering) or simply by denying certiorari to Trump or anyone else who wants further review of a state supreme court or federal appeals court decision on the question. I wouldn’t bet on either of those possibilities, though.
Many if not most commentators think it’s all but inevitable that the six Republican Justices will find some pretext, however absurd, on which to rule that Trump isn’t disqualified under Section Three. Liberal reporter, commentator, and editor Josh Marshall, for example, finds it “virtually certain that the Court would reject any effort to bar Trump from the ballot anywhere.”
Marshall may very well be right. But I want to offer at least one cause for a small amount of uncertainty: recall that Baude and Paulsen, authors of the article advocating Trump’s disqualification, are members in good standing of the reactionary Federalist Society. It seems to me just possible that Chief Justice Roberts and at least one other Republican Justice could decide—just as those two guys appear to have—that the long-term interests of their right-wing political project would actually be served by ending Donald Trump’s career as a public official quickly and cleanly, clearing the way for Ron DeSantis (or someone) to run in 2024 and for the Republican Party to move on afterward. A Section Three case would give them a perfect opportunity to force exactly that outcome.
I wouldn’t bet any money that Marshall and similar commentators are wrong. Still, it’s hard to avoid noticing that Trump’s personal interests and the political interests that Roberts/Kavanaugh/Barrett/Gorsuch hold may not be as precisely parallel as Trump would like them to be. At a minimum, that potential divergence bears watching.