The legal battle about whether the Constitution disqualifies Donald Trump from being president has begun. Advocacy groups are filing lawsuits in several states to ask judges to declare that Trump can’t be on the ballot because of his role in the Jan. 6 attack on the Capitol.
This is a debate that is only just beginning. In an interview, Arizona Secretary of State Adrian Fontes (D) called it “a slow-rolling civics lesson.” Let’s break it down.
What the 14th Amendment says: Basically, anyone who “engaged in insurrection or rebellion” can’t be allowed to serve in public office. This amendment was meant to keep former Confederates out of public office, and it has never been used to keep a presidential candidate off the ballot.
How it works: No one’s really sure, given that up until now, it hasn’t been used since the Civil War. Liberal advocacy groups and governance watchdog group appear to be going state by state to ask courts or secretaries of state to keep Trump off the ballot, either in the Republican primary or the general election. A similar effort failed to kick out two members of Congress — Marjorie Taylor Greene and then- Rep. Madison Cawthorn — but it did work on a county official in New Mexico who was convicted of his involvement in the Jan. 6 attack. A judge kicked him out of office.
The argument for using it to keep Trump off the ballot: The Constitution is clear and the evidence is clear, proponents say: Trump led an insurrection to undermine democracy after swearing an oath to protect the Constitution. “If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency,” wrote two conservative legal scholars, William Baude and Michael Stokes Paulsen, in a law review article that kicked off this debate.
The argument against it: “Denying voters the opportunity to choose is fundamentally un-American,” argued Georgia Secretary of State Brad Raffensperger (R) in the Wall Street Journal.
Invoking the amendment doesn’t require Trump to have been convicted of inciting or participating in an insurrection, but it’s also notable that of the 91 criminal charges he faces, inciting the Jan. 6 riot isn’t one of them.
Our colleague Aaron Blake points out that using the 14th Amendment is also dicey politically. Most Democrats appear to be keeping a safe distance from the effort.
Secretaries of state are going to play a big role in this: One secretary of state who may be at the center is Fontes. Because he is Arizona’s chief election administrator, he may get to decide whether Trump should be on his state’s ballot — and Arizona could play a big role in determining the winner of the White House next year.
Fontes said in an interview he’s not clear what the burden of proof is to say Trump engaged in an insurrection.
“We literally don’t know,” he said. “It’s so much easier to do a factual analysis and look at age and natural-born citizenship than it is to determine whether someone aided or abetted an insurrection.” (To run for president, you have to be at least 35 years old, a natural born United States citizen, and have lived in the United States for at least 14 years. There are no rules governing being convicted of crimes.)
Fontes is entertaining the possibility that Trump — or other politicians at the Capitol that day — have met the standards of the 14th Amendment. “It’s not an impossible question to answer, but we don’t yet have an answer,” he said.
Fontes said he hopes the Supreme Court weighs on this — ideally soon, because Arizona, like many states, certify its primary ballots by the end of this year.
But why leave it up to secretaries of state, most of whom run for office under a political party? That’s the argument New Hampshire’s secretary of state, David Scanlan (R), made in a memo released Wednesday. He was responding to the Trump campaign, which sent him a letter to keep Trump on the ballot. Scanlan agreed and argued he doesn’t have the legal authority to make such a decision — nor should any other secretary of state.
“In a situation where some states permit a name to appear on the ballot and other states disqualify it, chaos, confusion, anger and frustration will be the result,” he wrote. “At a time when we need to ensure transparency and build confidence among voters around the country, the delegate selection process should not be the battleground to test this constitutional question.”
