Testing Section 3
State election officials are standing by for challenges to Trump's right to run.
In my post “14th Amendment Solutions,” I argued that the notion that the disqualification clause added to the Constitution in the aftermath of the Civil War would does not, as some legal scholars argue, automatically disqualify former President Donald Trump from running for re-election. It appears that folks are going to test that theory.
NBC News (“Secretaries of state get ready for possible challenges to Trump’s ballot access“):
Arizona Secretary of State Adrian Fontes said Tuesday that his office is figuring out how to handle potential complaints over whether former President Donald Trump should be disqualified from appearing on the 2024 ballot.
The issue centers on the 14th Amendment, which prohibits people who have “engaged in insurrection or rebellion” from holding public office. Former Arkansas Gov. Asa Hutchinson raised the theory at last week’s GOP presidential debate that Trump’s conduct on Jan. 6, 2021, might disqualify him on those grounds — a theory that has gained traction among some legal scholars, though others discount the possibility.
Now, the people running state elections are trying to figure out what to do if people bring legal challenges against Trump.
“We have to have a final certification of eligible candidates [for the primary ballot] by Dec. 14 for Arizona’s presidential preference election,” Fontes, a Democrat elected last year, told NBC News. “And because this will ultimately end up in court, we are taking this very seriously.”
New Hampshire Secretary of State David Scanlan is dealing with the same question as he watches a potential challenge to Trump brewing in his state. There, a Republican former Trump ally is considering bringing a 14th Amendment challenge against him.
“We need to run an election,” Fontes said. “We need to know who is eligible, and this is of incredible national interest. We aren’t taking a position one way or the other.
“If there are people who want to fight this out, they need to start swinging, because I have an election to run,” Fontes added.
Scanlan of New Hampshire made the same point Monday — that he is “not seeking to remove any names from the presidential primary ballot” but is trying to figure out what to do about potential challenges that are brewing.
Given that barring Trump from running would cause irreparable harm whereas waiting until the issue winds its way through the courts wouldn’t, I’m pretty confident as to how all this will play out.
The Atlantic‘s David Frum echoes many of many previous arguments in “The Fourteenth Amendment Fantasy.” He also points out the fall-out effects of it being otherwise.
First, the section does not apply only to candidates for president—it does not even mention the president. It mentions senators, House members, electors, and civil and military officers of the United States or any state. The section appears to apply to the presidency only as part of that final catchall category.
Second, that phrase “aid and comfort to the enemies thereof”—what does that mean? The language is copied from Article III, Section 3 of the Constitution. But there, the language was drafted to make it difficult to convict an accused person of crime: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Section 3 of the Fourteenth Amendment strips away all of the 1787 restrictions: the overt act, the two witnesses, the requirement of public confession. The question of what constitutes “aid and comfort” is left to the judgment of … wait—Section 3 gives no clue about how it should be enforced or by whom. Again, that’s understandable. In 1866, none of this looked complicated. But in a modern context, that enforcement question of a reactivated Section 3 will be nasty.
Consider the scenario in which Section 3 is invoked against Trump in 2024. Although he has won the Republican nomination, Democratic secretaries of state in key states refuse to place his name on their ballots, as a person who engaged in insurrection against the United States. With Trump’s name deleted from some swing-state ballots, President Joe Biden is easily reelected.
But only kind of reelected. How in the world are Republicans likely to react to such an outcome? Will any of them regard such a victory as legitimate? The rage and chaos that would follow are beyond imagining.
And then what? If Section 3 can be reactivated in this way, then reactivated it will be. Republicans will hunt for Democrats to disqualify, and not only for president, but for any race where Democrats present someone who said or did something that can be represented as “aid and comfort” to enemies of the United States. Didn’t progressive Representative Ilhan Omar once seemingly equate al-Qaeda with the U.S. military? Do we think that her political enemies will accept that she was making only a stupid rhetorical point? Earlier this year, Tennessee Republicans tossed out of the legislature two Black Democrats for allegedly violating House rules. Might Tennessee Republicans next deem unruly Democrats “rebels” forbidden ever to run for office again?
An automatic disqualification for those deemed by lowly election officials to have somehow supported an insurrection is just obviously absurd. There’s just no world in which that question wouldn’t have to be adjudicated. And, absent criminal conviction for a related crime, I just don’t see how it would stand up in court.
Frum goes on to argue that the cleanest way out of this would be for Republican primary voters to choose someone other than Trump—which he admits is highly unlikely. Regardless, the 14th Amendment isn’t going to save us.
There is a far stronger 14th amendment case against Stuart Rhodes and other OKs and Proud Boys actually convicted of seditious conspiracy than there is against Trump, despite his obvious role in whipping up the J-6 mob. Frum is grasping at straws and presenting a parade of horribles with his reference to Rep. Omar’s remarks and likely MAGAs reaction. The key is getting judicial rulings that define insurrection and rebellion, aid and comfort, etc. In a better world, the secretaries of state wouldn’t be partisan hacks when doing their election related job. (Compare Raffensperger in 2020 to Ohio’s Ken Blackwell in the early aughts – Blackwell was simultaneously in charge of Ohio’s election process and chairman of the Ohio Bush campaign.)
The problem is that the legislation isn’t clear. So, of course, secretaries of state have to decide on a course of action.
The way I read it is that the 14th Amendment automatically disqualifies legislators or officials who have violated their oath of office from fulfilling any subsequent office.
One could very reasonably argue that an intermediary step is necessary to determine whether said oath was violated, but once this is settled we’re done: no separate or subsequent proceedings are necessary to bar the violator from office. This is what lawyers mean by “self-executing.”
Now the problem, of course, is that the 14A doesn’t specify how or even whether it will need to be determined that someone violated their oath of office.
But that doesn’t invalidate the 14A. Therefore, some additional legal determination is necessary.
In short, don’t blame the (potential) complainants, the secretaries of state, or the lawyers. Instead, blame the law as written.
This is a case where the tradition of states running their own elections will bite Trump in the ass.
Wisconsin, for example, has a State Supreme Court that has flipped liberal, so they are somewhat more likely to rule against Trump appearing on the ballot than they would have been even last month.
And it only takes a single swing state to destroy Trump’s chances at the presidency. Just like it only takes a single conviction on one of the 91 felonies to land his orange ass in jail. Theoretically.
Once again Trump finds himself in serious jeopardy. He needs a perfect outcome. He cannot tolerate even a single failure. And his record is one of very high failure rates and just a few successes.
I doubt the Federal Supreme Court will want to get involved in how states run their elections, particularly on a matter such as this – but we’ll see. It’s not like they respect precedent or decorum any longer.
We live in interesting times.
Well, the Republicans have already shown an healthy appetite for using the apparatus of state government, where they hold majorities, to use idiosyncratic interpretations of law (unified executive theory, VP can reject state electors, they can oust state officials simply for not agreeing with them) in order to get around regular majoritarian process. So part of me thinks this is turnabout is fair play. I think it’s a dangerous precedent because then the Republicans will do it as well.
Also, the only way it would work is if Democrats could get Trump off the ballot in a majority of swing states. At this time that would mean being able to get Trump off the ballot in the following states Arizona, Arizona, North Carolina, Michigan, Wisconsin and Pennsylvania. Or get him off the ballots of a subset of those states in a way that the GOP in the other swing sates would not be able to get Biden disqualified. Red states kicking Biden off the ballot in states that are already red would be of no consequence.
That is a tricky dance and frankly independent voters are a lot more forgiving for some reason, of the GOP pulling that kind of crap where they tend to punish Democrats for doing the same kind of stuff. I would rather Democrats put their efforts into winning election above board rather than depending on untested legal theories to block Trump access to the ballots in those states.
I would also not be so sure SCOTUS would be hands off on this sort of constitutional gymnastics. They are also very much more forgiving on GOP nonsense then they would be for this since it’s not beyond imagination that one of the older justices might need to be replaced before 2028.
@drj: Honestly, I think the provision was crystal clear: it applied to those who took up arms against the Republic during the Civil War. And most of them were pardoned/exempted not long thereafter.
@Tony W: @Rick DeMent: I can’t imagine the Supreme Court NOT ruling on it if a state court dusted off a 150-year-old provision to rule that someone not convicted of a crime was barred from running for office.
Very interesting pasttime, scriptural exegesis of the Founding Document.
But no one can doubt that ballot access would get to the Supremes virtually instantly and that Bush v Gore would turn to be precedence after all. That state control of federal elections doesn’t inconvenience Republicans.
@James Joyner:
That’s not what it actually says, though.
There is absolutely nothing in there limiting 14A s.3 to those who participated in the Civil War.
@drj: Exactly.
If the amendment were intended to be restricted to participants in the Civil War, then it would have stated such.
I doubt “originalists” will see it that way though, at least under these circumstances.
@Tony W:
The incoherence (or incompleteness, if you like) of section 3 of the 14th Amendment should tell you that originalism isn’t exactly the best idea ever.
@JohnMc:
Nicely summarized.
The various lawyers arguing this are right that it is “self executing” like the requirement the candidate be 35 years old. And it’s fascinating that conservative scholars are saying so. But there’s a legally accepted piece of paper that says he’s 35 or not. (GOPs bitching about Obama’s aside.) Not so with insurrection unless there’s a conviction for seditious conspiracy or some such. And even then there’s an argument about what constitutes “insurrection or rebellion”.
As Atrios pointed out, the GOP pros all want Trump gone. But with the base identifying with him, none of them will step forward to do anything about it. Ds gave them a chance to convict on impeachment twice and now legal scholars have handed them another chance. No guts, no glory.
A question no one has asked yet: Who has standing to lodge the complaint?
SoS’s have to make the first move in order to get this adjudicated.
This will likely happen because someone petitions the SoS, of a particular state, to do so.
Trump publicly stated that we should suspend the Constitution, so it doesn’t seem so far fetched.
Alan Dershowitz has pointed out that the amendment says nothing about running for an office, just “holding”, i.e., serving, in an office. So these “on the ballot” lawsuits are just election interference. This goes double since barring there isn’t even agreement among The People that Jan 6 was an insurrection, much less Donald Trump’s complicity in it.
The closest you could get to this is for the Congress that counts the Electoral votes in 2025 to impeach and vote on whether Trump engaged in insurrection in 2021. Oh, wait.
I would hope that not a single Democrat of any prominence or office brings any effort forth based on this – at least until Trump gets convicted. And by the way, I don’t think documents case, as it stands now, would qualify. They would have to show he actually shared the material with foreign agents.
Otherwise, ballot denial by Democrats looks really, really bad.
Let Republicans lead this effort. Let Trump and the MAGAs scream all they want about Rinos.
@just nutha: I think that if the Capitol Police officers who were injured on 1/6/21 were to file a suit claiming that their injuries resulted from battling against an insurrection, even today’s Supremes would have trouble justifying a claim that they didn’t have standing.
@JKB:
And yet running for office has the logical outcome of winning and thus holding the office. So if he succeeds in his running, is he allowed to hold under Section 3? At the very least, he’s given aid and comfort with his very public proclamations of support and offers to pay legal fees. It’s worded poorly but what’s there is not in his favor unless one is blatantly pro-Trump.
Republicans are really playing with fire here. They’ve let this get to a point where they will have to take an terrible position no matter what. This doesn’t have a good end for them even if he wins because he’ll turn on all of them like a mob boss cleaning house or GoT vengeance scene. He *will* get his pound of flesh if they give him a chance for any perceived disloyalty or betrayal. Their best bet is to play up originalism, “what the Founders told us they wanted”, and the Constitution as Holy Writ – nothing we can do and besides the libs did this anyways. This might be the last offramp they have before he purges them all. The base will be mad but the base is always mad. Better to be angry and have it pass then have him actively targeting you with his minions having force of law behind them.
It would have been fairly easy for the authors of the 14th amendment to be more specific to the Civil War:
That they chose not to make this specific to the War of Rebellion means that they were probably concerned about it happening again, at some other point in time. So it’s a bit of a dodge, I think, to say “well, they meant exactly and only this,” rather than “they meant this, but also recognized the fragility of peace, and so worded the amendment in a manner that was also forward-looking.”
@JKB:
This is a dumb comment for him to make. The qualifications for holding an office extend to running for said office–if you don’t qualify to hold the position, you are not qualified to run for it, because you’d immediately be disqualified from being sworn in.
@Jen:
That’s exactly why he said it – a “loophole” that isn’t but allows them plausible deniability to keep sucking up to the masses.
The current legal logic and standing is the qualification for running are the same as holding office but unless that’s literally specified and spelled out as such, it’s an required assumption for the process to work. Additionally, winning the race doesn’t necessarily mean you get to hold office or even get sworn in by that same logic. You can be allowed to play and not win if told ahead of time but it will look shady AF and provoke instinctive reactions. Remember a few months back when a kids’ team was allowed to play in a league they weren’t a part of, won and didn’t get the trophy? That kind of outrage that the “winner” got cheated even if they went in knowing they couldn’t win. So if he manages to win and gets legally disqualified, they can scream “election interference!!!!” or straight up sabotage/coup.
@Jen: Wouldn’t the MAGA world be happy if they actually won and couldn’t get their man inaugurated? Yeah, they would understand.
I amuse myself.
@Jen:
My thought as well was for future deterrence.
The problem is the value of a deterrent is really hard to asses. especially since what the constitution mandates does not seem to be applicable absent a specific law regarding it, see emoluments, or a lawsuit having to do with such provision even absent a law, again see emoluments.
I agree with James in this piece.
Regardless of the interpretive differences of the 14th Amendment, the reality is relatively few people believe it applies to Trump. Those who want Trump to be eliminated by the 14th Amendment have a very tall hill to climb, convincing others to adopt their position, which isn’t likely for reasons that should be obvious.
As a practical matter, this isn’t going to happen, and people ought to seriously reflect if they really want the courts to adjudicate this question in the current political context.
@Jen:
Don’t argue with me. Argue with Alan Dershowitz. In any case, which is more probable, trying to sort this out in the next couple months when the ballot deadlines start approaching or the courts require Trump be on the ballot if he meets the established criteria and the 14th amendment question take the full 16 months between now and January 2025 to be sorted out?
Keeping Trump off the ballot denies the constitutional rights of the voters to vote for the candidate of their choice. Congress impeaching and if convicted removing, is established procedure. And will be done by a freshly elected House, not to mention 1/3rd of the Senate.
@drj: @Tony W: Oh, I agree that it’s not a one-time provision. It’s just that only the Civil War is an obvious “self-executing” case.
I think Congress could easily pass a law saying that Event X constituted an insurrection and thus Section 3 disqualifies those found guilty of charges related to it. I think the courts may well back election officials ruling that those convicted of violation the Insurrection Act are barred from running.
@JKB: If you read my comment closely, it is indeed Mr. Dershowitz whom I am calling a dolt.
As far as “keeping Trump off the ballot denies the constitutional rights of the voters to vote for the candidate of their choice,” remove Trump from the equation. Should, say, Arnold Schwarzenegger run for President? Plenty of voters would likely declare him to be the candidate of their choice. He cannot, however, because of the “natural born citizen” provision. Are their rights being denied because they can’t have the “candidate of their choice”? How about someone under 35?
I truly do not care if Trump is on the ballot or not. That there are people who will vote for him despite his abhorrent behavior, mishandling of classified materials, his lying, his stupidity, and his health issues…I no longer care about any of it. I care only about motivating the voters who realize how fast our world standing PLUMMETED when this miscreant was elected last time. We were a global joke. He is a dangerous, ridiculous man. My focus is on making sure everyone sane remembers this.
@Jen:..Should, say, Arnold Schwarzenegger run for President? Plenty of voters would likely declare him to be the candidate of their choice. He cannot, however, because of the “natural born citizen” provision. Are their rights being denied because they can’t have the “candidate of their choice”? How about someone under 35?
Let’s not forget the 22nd Amendment. Both Bill Clinton and Barack Obama would have been the candidate of my choice for President USA a third time if they were allowed to run.
@Mister Bluster: Now THAT is an even better example of voters being “denied the candidate of their choice”–thank you for the reminder.
@Jen:
There are so many the reductio needs to be reduced in order to even be absurd.
How many millions would rather have voted for Kasich over Benito? Or Harris over Biden? What of all the candidates who drop out of the primaries while garnering maybe 5% of the vote? What of all the local and state elections with sore loser laws? Don’t they make a “candidate of their choice,” such as Liz Cheney, from even running? What of those politicians who are popular but don’t run, like Mario cuomo or Collin Powell? Does there need to be a la compelling them to do so, so everyone will have the candidate of their choice?
A question for the commentariat here: setting aside the question of this applying to Trump, I am wondering about an issue a bit closer to home. Several NH state reps.* proposed a bill last year to have New Hampshire secede from the U.S.
Is the act of proposing that legislation considered “engaging in insurrection”? After all, they took an oath to uphold the Constitution when they were sworn in. Is support for secession disqualifying?
*The usual libertarian clown show.
@Jen: It would depend very much on how the bill was written, IMHO. There are ways for a state of the U.S. to legitimately separate itself from the U.S. of A.(getting buy-in from the other states.) If the bill were to state “hey, let’s start the process to legitimately separate ourselves” there would be no problem.
There’s a reason why treason is a crime defined under the Constitution. “Engaging in insurrection” unfortunately is not.
@Jen:
Would that mean I’d have to show my passport at the border to shop the NH State Liquor Store???? And on my return declare my purchases to Mass. Customs and Immigration??? Say it isn’t so!!!!!
@Grumpy realist: That makes sense. Clearly, the bill had no chance of going anywhere and as @CSK points out, it would be beyond daft for NH to go this route. I’ve been annoyed as one of our town’s state reps was among the would-be secessionists. We’d have to import food, for crying out loud!
@Jen:
Would NH form its own Defense Dept.?
Would NH residents lose their right to Social Security? To Medicare and Medicaid?
Wht happens if there’s a disastrous storm?
That’s a lot to lose.
@CSK:
Not in time to avert an invasion from Canada.
Once they take over NH, they cut off Maine from the rest of the US and can take it over, too.
Even if Canada passes up this golden opportunity, Maine would still be cut off from the rest of the country.
@Kathy:
I know. Vermonters would still be able to escape to NY and Mass.
@CSK: Libertarians don’t care. The whole point is to “wean” everyone off of all “services” which I guess includes roads too, as we’d be foregoing federal highway funds. This sort of nonsense is precisely why I consider libertarians to be deeply unserious people. They are attention-seekers and annoying AF.
@Kathy: Maine would quickly seize the minuscule portion of coastline NH has, thereby connecting them to MA and retaining the continuity of the continental US.
@Tony W: It never gets to a State Supreme Court, or even a state trial court. It gets removed to federal court immediately as it is squarely a federal question.
My bet is that the poor district court that gets it holds that to be applicable, the individual needs to have been convicted by a Court (civil or military?) or Congress (impeachment) of a crime that explicitly requires a finding of insurrection or treason – or have Congress pass a law on how to adjudicate its applicabliity.
@Jen:
Maine has no independent armed forces, and would have to wait for the president to order such an attack.
On the other hand, should NH secede in the manner of the Confederacy, deposing the rebel government and bringing the sate back to the union ought to make for a very short war.
@Jen:
Hmm. NH’s 18 miles of coastline produce a fair share of NH’s tourist revenue, do they not? Would they be willing to cede that? Which raises the question: What happens to I-93, I-95, and I-89?
@SC_Birdflyte: For an election in a state in which they don’t reside? Meh… I dunno. Especially THIS particular SCOTUS.
@CSK:
@Kathy:
Since libertarians fund absolutely nothing, Maine can be assured they will meet no resistance. Local waitstaff might be sufficient to fend off any attempts by NH to retain the coastline. In fact, given the general political bent of Portsmouth and surrounding areas, the residents might declare themselves a part of Maine, preempting the need for any invasion.
Good question on the highways though–I guarantee there won’t be funds to maintain them.
@James Joyner: The writers of the 14th Amendment had the opportunity to put in a test or rubric that must be met, but chose not to – as is common in Constitutional provisions. It is left up to us to interpret and enforce as we see fit.
I see strong tension between “state’s rights” and “my team must win” – and I’m making popcorn.
@Jen:
Due to the transitive nature of dolthood, I would extend the title to JKB as well, for quoting the original dolt.
If we examine Dershowitz’s record, we will see that he went to Epstein’s Pedophile Island, where he said that he received massages, but was wearing underwear. Taking him at his word, we see that he was unwilling to notice a lot of children being sex trafficked or that he was brought to Pedophile Island to be enticed. He is willing to ignore the reality in front of him (sex trafficking), for his own benefit (a lovely island vacation). And that is if we take him at his word.
Further, looking at his legal punditry, we will see that he has (for the past 15 years or so) been pushing a pro-Republican legal agenda, with no real interest in the legality, and no one questioning his expertise when his punditry does not pan out in the vast majority of cases.
JKB is mistaking someone taking a role of advocacy for someone taking the role of analyst.
(Tribe is also more of an advocate than an analyst these days)
ETA: huh, no one mentioned Lawrence Tribe. He’s usually at the forefront of these “one clever trick to get rid of Donald Trump” things. I stand by my assertion, but it is a spurious assertion.
I think we’re missing the obvious chance to accuse JKB of being a groomer, since he quotes Dershowitz, who most likely IS a child molester/groomer.
Should JKB feel mortally offended by such accusations, well, he can look at all of his current republican friends, “grab ’em by the pussy” Trump, “I swear they were legal” Matt Gaetz, “I thought they wanted it” Matt Schlepp, and just work outward from there.
Forgive my ignorance, but is there a way to get the issue moved straight to the Supreme Court once somebody challenges Trump’s right to be on the ballot? It might be the final straw for a lot of people contemplating violence if the matter drags on with conflicting appeal court decisions all through election year, especially if he’s deemed ineligible after he’s clinched the nomination.
I was too busy to comment this morning that the old military term, “Sea lawyer,” applies to many of the folks yelling and screaming trying to pin down Trump via some remote clause.
The Urban Dictionary (meh on this, more about loophole seeker) defines it as, “An old navy term, when at sea a sailor is a law expert, but in reality, they know nothing. ”
Dictionary.com “a sailor inclined to question or complain about the orders given.”
The Free Dictionary, “a contentious sailor, who habitually argues, questions orders and regulations, etc.”
I’m seeing a first reference 1805-1815.
@Richard Gardner: In Australia, a “bush lawyer”.