LaRue writes at Structure Matters. He is former deputy director of the Eisenhower Institute and of the American Society of International Law.
Section 3 of the 14th Amendment is fast becoming a well-known provision of the Constitution. Its rise comes with portents of a constitutional crisis because it prohibits insurrectionists and their abettors from serving in public office. When two originalist professors affiliated with the conservative Federalist Society concluded this summer that the clause disqualifies Donald Trump from being reelected, attention exploded.
However, this is not an issue only for legal scholars and election experts as polling on the topic has actually begun. Politico reported on September 29 that 51% of voters would support using the Constitution to disqualify Trump. The Supreme Court could well have to decide if and how this happens (more on that later).
The language in the Disqualification Clause, as Section 3 is known, is not merely historic. While inspired to prevent former Confederate leaders from assuming positions in state or national government, it does not cite the Civil War and applies to any act of rebellion. It has been rarely used or needed.
Disqualifying a former president running to reclaim the office is truly unprecedented and deserves elevated attention. The best experts can only guess what might happen, because the Constitution is silent on implementation, and the few, mostly irrelevant cases provide no useful interpretations for how Section 3 would work in this circumstance.
There are four key sets of questions:
- What behavior is included under the language, "shall have engaged in insurrection or rebellion . . . or given aid or comfort" to the perpetrators?
- Holding office is proscribed, but what about running for office? When can disqualification go into effect; before or during the primaries, before or during the general election, or only after a candidate is elected?
- Perhaps most importantly, who, what institution, and what process decides a presidential candidate's disqualification? What will be the basis for any evidence needed? What standards should be applied?
- As a policy or political matter, is using the Constitution in this way an acceptable solution to such a fraught case?
Many related questions also emerge. A thorny one will be whether Section 3 is "self-executing," akin to the Article II provision requiring presidents to be at least 35 years old; if so, how is self-execution determined? And some observers even question whether a former president is subject to Section 3's jurisdiction.
These and other uncertainties combine to produce serious constitutional challenges. Additionally, there is the federalism wrinkle of each state using its own laws to administer elections, particularly ballot access.
The first skirmishes are already playing out. Secretaries of State in Michigan and Georgia say they do not have the authority to keep Trump off the ballot and that it's up to the courts. Citizens in Colorado have the right to challenge a candidate's qualifications and are now doing so, and legislators in California have asked the attorney general to produce an opinion on whether Trump should be kept off the state’s ballot.
Various suits in nine states have been filed, with more likely to come. Some cases will not survive the path to the Supreme Court, where an ultimate decision seems necessary to be made. Even if a case reaches the highest court, it may not be heard, as just occurred to an appeal from a candidate running against Trump in New Hampshire. But it only takes one case to earn a review. The sooner the better.
As if this isn’t complicated enough, we can only speculate how the nine justices will respond. Any outcome is possible, from disqualifying the former president to letting him attempt reelection if he wins the Republican nomination. (A decision only after votes are cast in November would be either a disaster or moot.)
The ironies remain profound. It is understandable to say, “let the voters decide” Donald Trump’s fate in 2024, as The Washington Post recently editorialized. Then again, the voters in 2020 already did that, and he tried to overturn the result. Can law-breaking or Constitution-denying behavior between elections be overlooked simply by saying, “never mind, leave it to the voters next time”? As Kermit Roosevelt wrote in the Los Angele Times, “‘Beat him at the ballot box’ is a less convincing prescription if your opponent will not accept defeat.”
The Constitution is our failsafe. Yes, a Senate conviction of the impeached Trump may have been a preferred solution, but that did not happen. Our democracy affords us other options in this case: standing down and standing by for the next election, or honoring the Constitution by using it.
The threat of political violence does loom, but it might occur whether he is on the ballot or removed. If his name is kept off the ballot, supporters will likely make claims about being “denied!” and if he is on the ballot and loses on Election Day, the utterances of “it was rigged!” will certainly be heard.
Hopefully, the risk of organized violence is likely overstated given that Trump’s most active followers now face jail time or have shown little enthusiasm to protest his indictments. Yet violence by lone, rogue individuals remains a serious concern (countering this risk is its own topic).
The implications of this potential crisis are foundational, more so than partisan or political. At the very least, Donald Trump gave aid and comfort to the now-convicted insurrectionists when he did nothing in the hours after the Capitol was breached as a clear violation of the Constitution and his oath to defend it. If he gets a pass just because he’s a candidate again, our democracy is at grave risk.
The rule of law still matters. We are about to be reminded how vital the Constitution is to each and all of us.
Note: Many of the cited links in this column were accessed from the Election Law Blog. Posts from Richard L. Hasen, Derek T. Muller, and Edward B. Foley were particularly informative.
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