Washington – Efforts are underway in numerous states to keep former President Donald Trump off the ballot in 2024, and challenges to his eligibility have pushed courts into unfamiliar territory as they try to navigate the application of a little-known constitutional provision ratified in 1868.
Closely watched disputes in Colorado, Minnesota and Michigan have been dismissed by judges there, but voters seeking Trump’s removal from the primaries and general elections under Section 3 of the 14th Amendment have vowed to continue their fights, raising the possibility at every stage of the proceedings that the Supreme Court will be called upon to intervene.
“We’re in uncharted waters. It’s very unpredictable,” Eric Segall, a law professor at Georgia State University, told CBS News. “Whatever happens in the state courts, in the Supreme Court, and on the merits of that and the procedures that we are using, we are not finding the law, we are not interpreting the law, we are creating the law.”
Known as the disqualification clause, Section 3 of the 14th Amendment states that no person may hold office if he or she has “before been sworn into office as a member of Congress or as an officer of the United States” and has engaged in insurrection or rebellion against the government. Constitution.
The clause was enacted in 1868, in the wake of the Civil War, to prevent former Confederate civilian and military officials from ever holding state or federal office again, and was largely forgotten until the January 6, 2021 storming of the U.S. Capitol .
In the wake of the January 6 attack, when a mob of Trump supporters stormed the US Capitol in an attempt to stop Congress from counting state electoral votes, groups of voters in Georgia and North Carolina argued that the GOP representatives Marjorie Taylor Greene and Madison Cawthorn were ineligible to run for re-election under Section 3.
An administrative law judge in Georgia found there was insufficient evidence that Greene was involved in an insurrection and that she should be barred from the ballot there, while Cawthorn’s defeat in the primary ended the challenge to her eligibility.
But in New Mexico, a state court judge ruled that a county commissioner should be removed from office and barred from holding any federal or state office under Section 3 because of his participation in the May 6 riot. January.
While the cases do not involve Trump and Section 3 has never been invoked against a former president, they set an important legal precedent, said Ron Fein, legal director of Free Speech For People, which brought the case against Cawthron.
“All three of these are important building blocks and legal precedents that we continue to cite in our case [Citizens for Responsibility and Ethics in Washington] cites in Colorado and that help establish the legal framework that we are arguing in this case against Trump,” Fein told CBS News.
Free Speech for the People has filed legal challenges to Trump’s candidacy in Michigan and Minnesota on behalf of voters in those states and is asking courts to block their secretaries of state from entering Trump in the 2024 GOP primary and general elections .
“We cannot allow our democracy to be hijacked by threats of violence from failed political candidates like Trump,” Fein said. “And the lesson that the framers of the 14th Amendment learned at the cost of hundreds of thousands of lives is that someone who took an oath to uphold the Constitution and broke that oath and engaged in an insurrection is too dangerous for a public office because if they are admitted to power again, they will do the same or worse.”
Ongoing disputes
Cases filed by voters and advocacy groups seeking to disqualify Trump from running in 2024 have been brought in more than half the states, including cases that have ended up in court in Colorado, Michigan and Minnesota, according to a report. compilation by Lawfare.
In Colorado, a state court judge in Denver said in a ruling Friday that Section 3 does not apply to Trump and ordered that he be placed on the presidential primary ballot. Judge Sarah Wallace wrote in her 102 page decision that Trump “incited an insurrection on January 6, 2021 and thereby ‘engaged’ in an insurrection under Section Three of the Fourteenth Amendment” — the first time a court has ever made such a finding — but said he not be “persuaded” of this Section 3 applies to the president with the phrase “officers of the United States.”
In Minnesota, the state Supreme Court rejected a case seeking to keep Trump off the Republican primary ballot because it is “an intraparty election to serve intraparty purposes,” but said voters in the Minnesota could press their case after the March 5 state election. primaries regarding the counting of the general elections.
And in Michigan, a judge on the state’s Court of Claims ruled last week that the voters’ arguments presented a policy issue that precludes consideration by the courts “at this time,” and dismissed the lawsuit.
Michigan voters appealed the decision Friday and are calling for immediate review by the Michigan Supreme Court. Meanwhile, Washington-based Citizens for Responsibility and Ethics, which is behind the Colorado lawsuit, said it will appeal to the Colorado Supreme Court “shortly.”
Will it go to the US Supreme Court?
The cases raise questions that have been debated by legal scholars in panel discussions, editorials and law review articles, namely whether January 6 was an “insurrection,” whether Trump was involved in an insurrection and whether the presidency is among the offices covered by section 3.
Wallace, the Colorado judge, wrote in his ruling that it appears that “the framers of Section Three of the Fourteenth Amendment did not intend to include the president as ‘an officer of the United States'” and concluded that this did not apply to Briscola.
As the proceedings make their way through the courts, legal scholars generally agree that even if a state high court ruled that Trump is disqualified from running and ordered him removed from the ballot, the former president would appeal to the Supreme Court of the United States, thrusting the nation’s highest court into the center of a politically challenging issue during the 2024 campaign.
“If some jurisdictions start disqualifying it, the Supreme Court has to step in,” said Richard Hasen, an election law expert and law professor at the University of California, Los Angeles. “My dog in this fight is for finality.”
Former President Donald Trump during the UFC 295 event at Madison Square Garden on November 11, 2023 in New York City. Chris Unger/Zuffa LLC via Getty Images
There are several issues that could give the Supreme Court leverage to not decide the merits of a case involving Trump’s fitness to hold office, but Hasen stressed that a final ruling from the justices would be in the nation’s interest.
“We will be in a bad situation politically if this situation continues into the election and people don’t know if they’re voting for a candidate who isn’t even allowed to hold office,” he said.
What if Trump is excluded from the ballot?
Since elections in the United States are run by states, legal experts have predicted that a situation could arise where Trump’s name is barred from the ballot in a state – if the high court rules that he cannot hold office under the section 3 and that decision remains in force. – but listed on the ballot in another.
“On the one hand, it would be very unusual to have a major party candidate who is not on the ballot,” said Press Millen, a trial lawyer who represented voters challenging Cawthorn’s candidacy. “But on the other hand, if you look at down-ballot races, it’s not atypical at all.”
In the 2012 Republican presidential primaries in Virginia, for example, candidates Newt Gingrich, Rick Santorum, Rick Perry, and Jon Huntsman did not appear on the ballot, and there were instances where the names of third-party candidates were omitted from the ballots. votes. some states for the general election, such as Kanye West in Virginia, Arizona and Wisconsin in 2020.
“A state has a legitimate interest in excluding an ineligible candidate from the general election if the matter is to be resolved at that stage,” Fein said.
He noted, however, that it is preferable that the question of Trump’s eligibility be resolved at the primary stage, so that Republican primary voters can choose among candidates who are constitutionally eligible to hold office.
If Trump is left off the ballot in a state, the former president could launch a write-in campaign, although the rules for doing so differ from state to state.
“But the big picture is that even if he amassed a majority of votes through a write-in campaign, he would still be ineligible to appear on the general election ballot, and that’s not a way to circumvent the requirements of the Constitution,” Fein said .
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