An obscure constitutional provision is being invoked to try and bar former President Donald Trump’s presence on primary and general election ballots across various states.
These legal maneuvers revolve around the “disqualification clause,” formally known as Section 3 of the 14th Amendment, which has now made headlines due to lawsuits initiated by voters in Colorado and Minnesota. Their contention is that Trump, because of his involvement in the January 6, 2021, U.S. Capitol riot, is constitutionally ineligible for federal office.
The outcomes of these legal battles could potentially upend the Republican primary, given Donald Trump’s status as the frontrunner for the GOP nomination.
The Disqualification Clause
So, what precisely does this Section entail? This lesser-known “disqualification clause” stipulates:
“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, 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, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
In simpler terms, Section 3 applies to individuals who have taken an oath to uphold the Constitution and have either “engaged in insurrection or rebellion” against the US or “given aid or comfort” to its enemies. The provision also grants Congress the authority to lift this disqualification through a two-thirds majority vote in both the House and the Senate.
Is Trump Eligible?
Assessing whether an insurrection unfolded on January 6 entails examining historical and practical factors, scrutinizing past insurrections, and deliberating the implications of adopting specific definitions for future disqualifications.
As for Trump’s involvement in the insurrection, confining the definition solely to individuals engaged in violent actions may pose challenges. Magliocca argues that it’s arduous to contend that Trump, as a central figure in the events of January 6, was not actively involved.
Conservative legal scholars William Baude and Michael Stokes Paulsen assert in an upcoming law review article that Section 3 is self-executing and enforceable without necessitating additional congressional action. They contend that Donald Trump is disqualified from pursuing future office due to his involvement in the “attempted overthrow of the 2020 presidential election.”
Trump continues to contest such arguments and has utilized his social media platform, Truth Social, to assert that the 14th Amendment lacks legal basis or relevance to the 2024 election. He dismisses efforts to utilize Section 3 as a “trick” and likens them to “election interference.”
Dissenting views are also expressed by two law professors who argued in a 2021 law review article that Section 3 does not apply to Donald Trump because, as president, he was not considered an “officer of the United States” subject to the disqualification provision.
Barring Donald Trump?
Efforts to prevent Donald Trump from featuring on the 2024 primary and general election ballots are indeed underway.
In August, the New Hampshire secretary of state sought legal counsel from the attorney general’s office regarding the interpretation and potential applicability of Section 3 to the 2024 presidential election. The state’s attorney general concluded that state law does not grant the secretary of state the authority to withhold a candidate’s name from the ballot based on Section 3 unless the candidate has been convicted or officially adjudicated guilty of conduct warranting disqualification.
In Colorado, a group of six voters, comprising both Republicans and unaffiliated voters, filed a lawsuit on September 6, contending that Trump is ineligible for the primary and general election ballots under Section 3. They claim that Trump’s involvement in the January 6 attack disqualifies him from holding public office and seeks a court order to prevent the Colorado secretary of state from granting him access to the ballot.
The 14th Amendment, including the disqualification clause, was passed by Congress in 1866 and ratified by the states in 1868. It was introduced in the wake of the Civil War with the explicit objective of preventing former Confederate civil and military officials from holding state or federal positions.
Historically, Section 3 was predominantly employed in the period between its ratification and the enactment of the Amnesty Act in 1872. This legislation removed the ban on most Confederate officials and their sympathizers from seeking office, as per records from the National Archives and Records Administration.
Congress also posthumously absolved Confederate General Robert E. Lee and former Confederate President Jefferson Davis in 1975 and 1978, respectively, thereby reinstating their full citizenship rights.
In 1869, a case involving Caesar Griffin, a Black defendant, marked one of the earliest significant legal interpretations of Section 3. Chief Justice Salmon Chase, serving as the circuit judge in Virginia, determined that Section 3 was not self-executing and necessitated enforcement through congressional action. However, legal scholars foresee that the implementation of this provision will likely be a contentious issue in the ongoing legal battles over Trump’s eligibility.
Although Section 3 has rarely been invoked in modern times and has never been applied to a former president, a state court judge in New Mexico ruled in September 2022 that Couy Griffin, a county commissioner and founder of the group “Cowboys for Trump,” must be removed from his governmental position.
Still, it is unclear whether this solitary decision from a state trial court, not to mention the swirling quagmire of legal opinions, will actually succeed in thwarting Trump’s ambitions.
Georgia Gilholy is a journalist based in the United Kingdom who has been published in Newsweek, The Times of Israel, and the Spectator. Gilholy writes about international politics, culture, and education.