Donald Trump may be the current 2024 Republican frontrunner but his mounting legal problems are threatening his chance of even appearing on the presidential election ballot in some states.
Political activists and government watchdog organisations have pushed for states to bar the former president from being an option for voters by invoking a little-known provision of the 14th Amendment.
Section Three of the amendment prohibits those who take part in insurrections or who aided enemies of the United States government from taking office.
Judges and justices in New Hampshire, Minnesota, Michigan and Arizona have already dismissed or rejected the attempt to disrupt Mr Trump’s ballot access. But Colorado, Maine and Illinois have disqualified the former president from appearing on the states’ presidential primary ballot.
To date, formal challenges to Mr Trump’s candidacy have been filed in at least 35 states.
It’s a bold strategy that thrusts American politics as far into uncharted territory as the Congress found itself in as lawmakers fled for their lives on January 6.
Insurrections loyal to President Donald Trump rally at the U.S. Capitol in Washington on Jan. 6, 2021— (AP)
What is the 14th Amendment?
Section Three of the 14th Amendment disqualifies a person from holding office if they “engaged in insurrection or rebellion” or “given aid or comfort” to enemies, after taking the oath of office.
The provision, often referred to as “the insurrection clause” does not define an insurrection or what it means to engage in one.
Originally, it intended to keep supporters of the South’s failed cease of secession from being elected to office.
But a handful of left-leaning legal groups, buoyed by donations from liberal groups and other Trump-opposed donors, pledged to use the provision to challenge for Mr Trump’s eligibility for president – citing the January 6 attack on the Capitol as an insurrection and Mr Trump’s actions as giving comfort to enemies.
Two constitutional law experts, Professor Lawrence Tribe and former federal judge J Michael Luttig, favour of the plan, arguing that Mr Trump gave comfort to enemies of the US government.
How Trump is barred from Colorado’s election ballot
A majority of the Colorado Supreme Court was convinced of the argument in a 4-3 ruling released on 19 December.
The court said Section Three of the 14th Amendment applied to Mr Trump and thus “it would be a wrongful act under the Election Code for the Colorado secretary of state to list him as a candidate on the presidential primary ballot.”
Justices heard arguments in the case earlier this month after a district court judge ruled that the provision did not apply to the president. The judge argued that Section Three does not explicitly mention the presidency only “officers of the United States” and because the presidential oath contains wording separate from other officers it was not included.
However, the state’s supreme court justices said they considered the presidency as part of “officers of the United States”.
More importantly, the justices agreed that January 6 was an insurrection and Mr Trump engaged in it when he sent messages to his supporters – an argument in the case that has been highly disputed in other states.
“We do not reach these conclusions lightly,” justices wrote in a majority opinion. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
President Donald Trump arrives to speak to supporters from The Ellipse near the White House on January 6, 2021, in Washington, DC— (AFP via Getty Images)
Much of the pushback from the Trump camp thus far can be summed up by the assertion that none of the January 6 rioters convicted of crimes related to the attack on Congress have been directly charged with engaging in a rebellion or insurrection.
Some, like Proud Boys leader Enrique Tarrio, were convicted of seditious conspiracy, however — and that’s an avenue that could theoretically be used to counter the Trump campaign’s legal defence.
Jonathan Turley, a conservative legal theorist with George Washington University, agrees. He has argued that the attack on Congress was “a protest that became a riot”, dismissing more serious charges filed against militia leaders, and arguing that Mr Trump’s speech on the White House lawn just minutes before the brunt of the violence began did not qualify as incitement.
The US Supreme Court heard arguments in the case on 8 February as they review the ruling from the Colorado Supreme Court. Mr Trump wants the US Supreme Court justices, three of whom he appointed, to overturn these findings. If they reject the Colorado ruling, Mr Trump’s spot on the state ballot would be restored.
How did other states handle the 14th Amendment argument?
Colorado was the first state to disqualify Mr Trump under the 14th Amendment. Maine followed shortly after with the secretary of the state declaring the former president ineligible to appear on the ballot. Illinois became the third state to do so after a circuit court judge ruled that he had violated Section Three of the 14th Amendment.
Mr Trump is appealing the Maine and Illinois rulings, which have paused their proceedings as the US Supreme Court case goes ahead.
In November, the Minnesota Supreme Court dismissed the lawsuit, claiming election officials nor judges had the authority to stop the Republican Party from offering Mr Trump the nomination.
An appeals court in Michigan ruled Mr Trump could remain on the ballot. The court said the lawsuit was not relevant because it asks whether Mr Trump is eligible to hold office, however, he has not been re-elected.
In December, a federal judge in Arizona rejected a little-known Republican candidate’s lawsuit to remove Mr Trump citing the 14th Amendment.
Judges in New Hampshire and Rhode Island dismissed similar lawsuits in their states.
Similar 14th Amendment arguments have been rejected on procedural grounds in Massachusetts, and Oregon.
