A former US president could have been kicked off the ballot in his quest to return to the White House because of a rarely used provision in an amendment created in the aftermath of the civil war.
A lawsuit out of Colorado that sought to oust Donald Trump in his re-election bid went before the US supreme court, which decided Trump could not be removed from seeking office there over the 14th amendment’s third clause.
The clause was intended to ensure that people who participated in the civil war and other acts against the US weren’t allowed to keep or resume holding positions of power in government. In essence, it says that people could not again hold office if they had participated in insurrection or rebellion against the country while they were in office.
Trump’s team argued the clause doesn’t apply to him for a handful of reasons, based on both esoteric readings of the clause itself and on larger questions like what constitutes an insurrection.
The justices sided with Trump, saying states could not try to keep a federal candidate off the ballot because it was beyond their power. The case involved several issues of legal reasoning the justices had to weigh.
Here are the clause’s big questions.
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 …
The first part of the clause essentially says that a person can’t hold office again if they were an officer of the US when they participated in an insurrection. It specifies that it applies broadly – to the presidency, Congress and “any office … under the United States”.
Trump’s team argued, though, that this means he couldn’t hold office again, not that he can’t run for office again, so he can’t be disqualified from appearing on the ballot. The legal question would then be raised anew if he won and therefore “held office” again. The case is therefore premature, they said.
In Colorado, the court concluded that because Trump is disqualified from holding the office of president, it would be a “wrongful act” for the secretary of state there to list him as a candidate in the presidential primary.
… 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 …
Trump’s arguments related to this part of the clause involve twists of plain language to conclude the president is not an “officer of the United States” and therefore the clause doesn’t apply because anything Trump did happened when he was president.
His attorneys argued that because the presidency isn’t explicitly listed in the clause, it wasn’t intended to include the presidency. They’ve also said that the presidency is not “under” the United States because it is the government, and because the president is an officer of the constitution, not of the United States.
These arguments go hand in hand with the earlier provision in the clause, about whether someone could hold office. Trump’s team argued that because the presidency isn’t specifically mentioned, like “member of Congress” is, it doesn’t apply to him.
The Colorado supreme court essentially said the plain language of the amendment and how the presidency is viewed overall show that the presidency is an office of the US, and the president would be considered an “officer” of the US.
“President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land,” Colorado’s ruling says.
… shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
The insurrection part of the clause involves perhaps the more political questions of the case: whether the associated events of 6 January 2021 to overturn Trump’s loss would constitute an “insurrection” and, if so, if Trump himself “engaged” in it.
In Colorado, the case went before a jury for a trial, with evidence submitted that backed up the claims both that the events of 6 January 2021 were an insurrection and that Trump engaged in it. Among the evidence were many months of claims made by Trump that the election was stolen and specific callouts to his supporters to protest the results.
Using definitions of what was considered an insurrection when the clause was written, the Colorado court said basically that it would entail a public use or threat of force by a group of people to hinder some execution of the constitution – in this case, the awarding of electors and the peaceful transfer of power. By that definition, the events of 6 January constituted an insurrection.
Trump’s team argued both that the events of 6 January were not an insurrection and that the former president didn’t engage in it anyway. His attorneys instead described the events as a “riot” and said the president’s speech was protected by the first amendment. They also pointed to comments he made telling the mob to go home eventually on 6 January, in which he said they should “go peacefully and patriotically”.
Colorado’s justices concluded that free speech rights don’t allow for incitement and that his intent was to call for his supporters to fight his loss, which they responded to.
“President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary,” the ruling said. “Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.”
But Congress may by a vote of two-thirds of each House, remove such disability.
Finally, there’s the matter of what role states play in assessing eligibility for federal offices and whether a state can decide not to put a candidate on the ballot because they haven’t met federal constitutional requirements for running, which include factors like age and citizenship as well as the broader insurrection question.
Even for federal elections, states manage the electoral process of who can vote, how they vote and how results are counted.
Trump argued that eligibility in this case is a political question that Congress should decide, not one for state courts – and not one for courts in general, which tend to stay away from purely political questions.
His team tried to make the case that Congress would need to put the process in motion to keep him off the ballot, saying that the clause is not “self-executing”, or something that goes into effect upon its creation.
The clause itself doesn’t say anything about whether Congress would initiate such a proceeding. Instead, it says Congress could remove a finding that kept an insurrectionist off the ballot with a two-thirds vote, thus allowing that person to hold office again.
The Colorado court rejected the idea that the clause needs congressional action to be implemented, relying on other Reconstruction-era amendments that went into effect without congressional action. If those other amendments needed Congress to go into effect, it “would lead to absurd results”.
“The result of such inaction would mean that slavery remains legal; Black citizens would be counted as less than full citizens for reapportionment; nonwhite male voters could be disenfranchised; and any individual who engaged in insurrection against the government would nonetheless be able to serve in the government, regardless of whether two-thirds of Congress had lifted the disqualification,” the court wrote. “Surely that was not the drafters’ intent.”
