Election Factor Three: Constitutional Challenges to Trump’s Eligibility

The move by Maine’s Secretary of State to disqualify Trump from the primary ballot raises the stakes considerably

Shenna Bellows, Maine’s Secretary of State, disqualifies Trump from the state’s primary ballot. Photo Credit: AP

This is Part Three of my series on major election factors in 2024. I was going to cover the question of Trump’s eligibility to hold office in a later piece, but the news from yesterday demands some deeper exploration now.

As reported in The New York Times, on Thursday Maine’s Secretary of State, Shenna Bellows, kicked Trump off of Maine’s primary ballot. She cited Trump’s role in the attack on the U.S. Capitol on January 6, agreeing with the petitioners (and the Colorado Supreme Court) that Trump had incited an insurrection and was therefore barred from federal office by the plain terms of Section 3 of the 14th Amendment. 

Accompanying her decision was a 34-page written opinion responding directly to three petitions in the state challenging Trump’s candidacy. In it she wrote, “the record establishes that Mr. Trump, over the course of several months and culminating on Jan. 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them” and sought through them to prevent the peaceful transfer of power.

“I am mindful that no secretary of state has ever deprived a presidential candidate of ballot access based on Section 3 of the 14th Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection,” Bellows wrote.

On the same day, however, California’s Secretary of State, Shirley Weber, declined to remove Trump from the state’s primary ballot. Courts in Michigan and Minnesota have also declined to remove Trump, at least for now, from their primary ballots.

So, it’s big question time. I want to discuss some key ones readers have asked in the hope of getting us all on the same page. This list of questions is not exhaustive, and the matter may (or may not) be settled by the Supreme Court directly in the near future. I hope you find this framework helpful in this moment in which we now find ourselves. Here are the questions I will tackle:

1. Why are state challenges producing such different results?

2. What are some of the best arguments for and against Trump’s removal?

3. Can’t the GOP just turn around and do the same thing to Biden?

4. How will this affect the upcoming primaries and election?

I’ll take these one by one, but you’ll see that there’s a bit of overlap. And I’ll end with some of my own thoughts about Trump’s disqualification under Section 3.

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Why are state challenges producing such different results?

The U.S. Constitution grants to the states the authority to administer elections, including how to run elections for federal office. That means each state has its own election laws and rules, including who has power over what part of the process. 

This helps explain why a secretary of state in Maine might conclude that Trump must be removed, while another in California might keep him on the ballot, even if both believe he has engaged in insurrection. Let’s look at those two situations more carefully. 

In Maine, the law states that the Secretary of State is the official in charge of receiving and making an initial determination that candidates for a primary are qualified to stand for office. Secretary of State Bellows examined Trump’s petition to appear on the ballot and found that he had made a false declaration that he was qualified to hold the office of president. The declaration was false, in her view, because Trump had engaged in insurrection by inciting the attack on the Capitol, and Section 3 of the 14th Amendment bars insurrectionists who have violated their oaths of office to support the Constitution from ever holding federal office again. By law, she was required to make the initial determination of his qualification for federal office, and she concluded Trump did not meet the legal requirement. Her decision can now be challenged in the courts.

Contrast that with yesterday’s decision by California’s Secretary of State. California law, unlike Maine, does not expressly give the power of first consideration of candidacy to that office. California Secretary of State Weber simply did not have the authority, many legal experts agree, to deny Trump a place on the ballot. Weber wrote that she was required to address primary ballot eligibility “within legal parameters” and “in a way that transcends political divisions.” She concluded, “California’s Elections Code provides the foundation for resolution of ballot challenges, including those related to candidate eligibility to appear on a ballot, by our courts.”

Here’s another way to say this: Both Secretaries of State were doing their jobs, within the processes and rules prescribed by their own state’s laws. Once officials determine that they must—or must not— make an initial determination of eligibility, the flowchart then splits into two paths. And within the “must” path, Trump could be disqualified by a finding that he is barred as an insurrectionist under Section 3. That’s what happened in Maine.

This difference in who makes that first call has a parallel in what’s happening among state supreme courts, where a key question is when someone like Trump could be disqualified. 

Under Colorado law, the Secretary of State must only place qualified candidates on the primary ballot. Therefore, it was correct in that state to assert a challenge to Trump by suing the Secretary of State to force her to not place his name on the ballot. Otherwise put, because the government is involved in policing who appears on the primary ballot, anyone with a problem with the proposed candidates should sue to stop the government from moving ahead with it.

Contrast that with how courts in Michigan and Minnesota have come out on the question. Without getting too far into the weeds, the main obstacle to removing Trump from the primary ballot in these states is the limit upon state power. In these states, political parties get to decide who will represent them in the election. This is an “associational” right that these states have left untouched by any political oversight. Courts there have no more power to prevent the GOP from allowing an insurrectionist to be on the primary ballot than they would a 25-year old. The government only has a say in the general election, based on how these states have arranged their election process.

Notably, none of these big cases or decisions has concluded that Trump is not an insurrectionist. And none of them has the definitive word on whether Section 3 actually acts as the bar to Trump. That is up to the Supreme Court because this kind of question has never fully been litigated and decided. 

Which brings us to the next, rather hard question.

What are some of the best arguments for and against Trump’s removal?

In an earlier piece, I wrote fairly extensively about the legal arguments around Section 3. These include the following:

• Whether Trump is an “officer” of the United States whom the Section intended to cover; 

• Whether Section 3 is “self-executing” or requires a further act of Congress to come into effect; and 

• Whether allowing the states to determine eligibility under their own patchworks of election laws fails to provide enough due process for someone like Trump. 

These are complex legal arguments that will make most people’s heads spin. Sadly, and admittedly somewhat cynically, a Supreme Court wanting to rule one way or the other can hang its hat on any one of these to get to the ruling it prefers. 

But what outcome is really best for our country and our democracy?

That is a very different question, and it’s important to point out how both sides have valid arguments.

Those opposed to striking Trump’s name—which naturally include Trump himself but also his allies, his primary opponents, and even Democratic leaders such as Gavin Newsom—see the move as fundamentally anti-democratic. Allowing the courts or politicians to limit the choices of the electorate leads to a dangerous place. It hands too much power to unelected or unaccountable officials while removing it from the people. Faced with a choice of more or fewer choices on the ballot, we should always err on the side of allowing the people to decide for themselves.

Hang on, say those in favor of striking Trump off. We actually did let the people decide, over 150 years ago, and they passed a Constitutional amendment saying that there would be an exception to allowing just anyone on the ballot who happens to be old enough and born here. They expressly banned insurrectionists precisely because these dangerous former leaders posed such a threat to our system that allowing them to be on the ballot put the entire union at risk. And besides, isn’t it disingenuous to say “the people” should decide presidential elections, when it was the Supreme Court that stopped the count in 2000 and handed the election to George W. Bush? Why is this any different?

I’ll discuss at the end of this piece which side I believe has the better argument, and why. For now, it’s important to understand that there are decent arguments on both sides of this.

Can’t the GOP just turn around and do the same thing to Biden?

Within moments after the Colorado Supreme Court barred Trump from appearing on that state’s primary ballot, right-wing leaders and media began calling for red states such as Texas and Florida to bar Biden in retaliation. They acted as if judges and official arrived at the decision to remove Trump by prioritizing a political agenda, rather than by applying the rule of law through an agonizing and painstaking process.

First things first. Biden is not an insurrectionist, and there is no evidence that he is. He was also born here and, as we are reminded every day by our media, he is well over the age of 35. So any effort to ban him under the Constitution ought to be dead on arrival in the courts.

The lack of any legal basis to proceed has never been an obstacle for the GOP, however. The House GOP members are, at this moment, proceeding with a bogus, evidence-free impeachment inquiry solely because Trump demands it from them. The scoring of points with their base and the pleasing of their political master has overridden all other considerations.

In my view, we shouldn’t ever give too much weight to what Republicans “might do” in response to doing what is demanded by the law, facts, evidence and reason. Indeed, we can expect that the more the nation leans into preserving the rule of law, the more outrageous Republican efforts will grow to discredit such efforts through sham proceedings and abuse of power. I would further argue that the more they howl, and the more they throw up absurd obstacles, the closer we must be to the truth and to greater accountability.

We should ignore their threats and do what is right and lawful.

How will this affect the upcoming primaries and election?

My answer here will leave many unsatisfied, so apologies in advance. That’s because the move to disqualify Trump will essentially have as much effect upon the election as the Supreme Court will allow it to have. See? Not a satisfying answer. Still, let’s look at the range of options.

On the one hand, the Court could call a complete halt to all state-level proceedings. It could achieve this by holding, for example, that only Congress can execute Section 3, but that it has failed to act. In the absence of any congressional implementation through legislation, the Section has no real force or effect. 

Or it could find that the Section was only retrospective in its effect, meant to apply only to former Confederates, and not future insurrectionists. This would be a stretch, but the conservative majority on the Court has been rather bendy in its constitutional interpretations of late.

On the other hand, the Court could also punt the question entirely. It could throw up its hands and leave Section 3 up to the states to enforce, while giving little guidance as to how. Or it could say that it doesn’t know what rules should be followed, and that’s up to each state, but in this case Colorado’s process lacks sufficient constitutional protections and Trump therefore must stay on the ballot.

In all likelihood, in fact, Trump will remain on most primary ballots, even while those states that have removed him should have the question decided by the Supreme Court prior to the primary election date. A key date to watch and count backward from is Super Tuesday on March 5, 2024. It would be in the strong interest of the nation to have the legal question resolved, at least in some manner, well prior to that date. One big complication: Primary ballots under certain state laws must be finalized months ahead of the actual primary. Colorado actually faces such a deadline, which is why SCOTUS may need to step in very, very soon.

Some final thoughts

I’ve had occasion to think longer and harder than I cared to about Section 3, and to consider the arguments made by each side, both legal and philosophical. I’m convinced, after reading the various opinions, dissents and law review articles on this question, that the Supreme Court could readily find any number of colorable legal justifications for its decision, whether the justices decide to rule for Trump or to punt the question squarely back to the states.

But on the question of what would be best and what the Court ought to do in the interest of our country and to honor the Constitution, here’s how I come down.

We are a liberal democracy, meaning that we allow rule by majority while protecting things like free speech and the right to protest and also, importantly, setting limits on the power of the majority to infringe upon certain inalienable rights and liberties of others. We, as a nation, decided after a bloody civil war that majorities in the several states would not be allowed to enslave minorities based upon their race. And we, as a nation, added the Reconstruction Amendments to the Constitution precisely to prevent backsliding toward secession or the oppression of African Americans within the states. 

One key part of those was Amendment XIV, Section 3, which acknowledged that insurrectionist oathbreakers should have no part in the federal government, even when their supporters are multitudinous and willing to vote them back into power. This was true in the Confederacy, and it remains true today. After the Civil War, our nation decided that such individuals were simply too dangerous and too traitorous to allow near the levers of power again.

Trump is such an insurrectionist oathbreaker. And as such, he is as dangerous as any former Confederate to our nation’s cohesion and unity. The authors of Section 3 knew what they were doing in barring such people from federal office. They didn’t stutter. And we can’t choose to ignore express parts of the Constitution based on a vibe that they somehow “feel” anti-democratic today, when in fact their whole purpose was to help preserve our democracy from deadly attack from within. We need to honor the lessons from the Civil War, the clear language of the Section, and the intent of its authors.

The fact that Congress was silent and has left the determination for electoral eligibility up to the states does not mean that Section 3 comprises mere words, waiting for Congress to take further action. The authors of Section 3 set out requirements around insurrectionist oathbreakers for election officials in the states to faithfully apply, whether they are the Secretaries of State within their states or the judges asked to weigh the legality of such decisions. That is actually their job. And we should let them do it.

This does not mean, however, that elected officials or judges can act arbitrarily in denying someone a spot on the ballot. The laws set out by each state must comport with Constitutional requirements of fairness and due process. And it may well be that what Trump received in Colorado, with a two-week bench trial improvised under an obscure Election Code, doesn’t cut it. Or it may be, for example, that a criminal conviction is what due process requires before such a disqualification is applied. That’s up to the Supreme Court to decide, if it so chooses.

But should courts really be the ultimate arbiters of Trump’s eligibility to appear on the ballot? Should they, and not Congress, adjudicate whether or not he is an insurrectionist? After all, Congress had the opportunity to answer this question, and it ended in an acquittal in the Senate.

We need to acknowledge that having the courts step in is not some crazy, anti-democratic notion. In fact, it is what Section 3 contemplates. Its authors did not believe the matter should be left solely to Congress, which under the Section has only the right to override such a disqualification by a two-thirds vote. And who, if not the judges in our courts, might be overridden by such a vote of Congress?

And lastly, let us not condemn secretaries of states or state court judges from attempting to apply the law as written in Section 3, subject to the peculiarities within their states’ electoral laws, whether or not they come out in Trump’s favor. Already, the justices of Colorado’s high court are under increased police protection due to threats upon them after their historic decision. Our civil servants are heroes for even putting their names upon decisions that are sure to enrage Trump’s most extreme and violent followers. If the Supreme Court punts this question back to the states, we will need even greater vigilance and protection for those upholding the rule of law.

While I have come down solidly on the side of disqualification, I do not pretend that it will be a magic bullet. In all likelihood, barring a surprise ruling from the Supreme Court, we will still need to actually vote against Trump in order to defeat Trump. He will seek to capitalize on any court victory allowing him to remain on the ballot, that is certain. But we shouldn’t be dispirited by such a ruling. 

Rather, we must redouble our commitment and resolve to defeat Trump at the polls and fulfill, through our ballots, the intent of the authors of Section 3: that insurrectionists who have violated their sacred oaths should never be allowed back into office. If the law will not prevent it, then we the voters must.

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