The constitution bars anyone from holding public office if they ‘engaged in insurrection’ – but political vitriol makes it a tough call
After defending the integrity of US elections from an onslaught of threats over the last several years, secretaries of state across the US are now turning to a new high-stakes question: Is Donald Trump eligible to run for president?
Several secretaries are already working with attorneys general in their states and studying whether Trump is disqualified under a provision of the 14th amendment that bars anyone from holding public office if they’ve previously taken an oath to the United States and then “engaged in insurrection or rebellion against the same”. That language clearly disqualifies Trump from running in 2024, William Baude and Michael Stokes Paulsen, two prominent conservative scholars, concluded in a lengthy forthcoming law review article. “If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so,” they write in the article.
A flurry of challenges to Trump’s candidacy are expected – one was filed in Colorado on Wednesday – but the legal issues at play are largely untested. Never before has the provision been used to try to disqualify a presidential candidate from office and the issue is likely to quickly come to a head as soon as officials make their official certifications about who can appear on primary ballots. Secretaries are studying who has the authority to remove Trump from the ballot and what process needs to occur before they do so. They also recognize that the issue is likely to be ultimately settled by the courts, including the US supreme court.
Jocelyn Benson, a Democrat in her second term as Michigan’s secretary of state, said she has spoken with another secretary of state about the 14th amendment issue “nearly every day”.
“The north star for me is always: ‘What is the law? What does the constitution require?’ To keep politics and partisan considerations out of it. And simply just look at this from a sense of ‘what does the 14th amendment say?’ We’re in unprecedented, uncharted territory,” she said.
Among the uncertain question is the proper timing for the challenges. It’s theoretically possible that a challenge to Trump’s ability to hold office could continue even if he were to win the 2024 election.
“There are a lot of ambiguities and unknowns still yet to play out,” Benson added. “Even if the former president does get elected in the fall of ’24, it could re-emerge then after an election. So we’re also preparing for a lack of finality of this and for it to be an issue throughout the cycle.”
Several secretaries are studying how state law might intersect with the disqualification language in the 14th amendment. In Arizona, for example, the state supreme court ruled against disqualifying three candidates for their involvement in efforts to overturn the election, saying state law did not allow for the use of the 14th amendment as the basis for a challenge. Unlike Trump, however, none of those three officials were charged with a crime.
“The state of the law in Arizona leans in one direction; the plain language of the constitution, including the supremacy clause, lean in a different direction,” said Adrian Fontes, a Democrat who was elected Arizona’s secretary of state last year.
“Regardless of whether or not the Arizona supreme court is correct – and I don’t think they are, I think they are dead flat wrong – but if I go against a standing rule in Arizona, is that something I can do? Or that I should do? So really these are the kinds of questions that we’re trying to answer and we’re being very deliberate and we’re being very judicious in our approach.”
Maine’s secretary of state, Shenna Bellows, a Democrat, said she has been studying the issue, but said her office wouldn’t address it before a candidate officially filed for the ballot. “While people outside of the business of running elections are free to speculate and inquire, debate, that is not our job. Our job is to follow the law and the constitution and not to make premature conclusions or speculation about what might or might not happen,” she said.
One left-leaning group, Free Speech for People, has urged several secretaries of state to unilaterally say Trump is ineligible from being listed on the ballot. But such an idea may be a non-starter for officials who know that they’re likely to face intense backlash over such a decision.
“For a secretary of state to remove a candidate would only reinforce the grievances of those who see the system as rigged and corrupt,” Georgia’s secretary of state, Brad Raffensperger, a Republican, wrote in an op-ed in the Wall Street Journal under the headline “I Can’t Keep Trump Off the Ballot”. Raffensperger acknowledged there was a legal process to remove candidates from the ballot in Georgia – an effort to disqualify Representative Marjorie Taylor Greene failed last year – but said voters should decide the issue.
In an alarming signal of the minefield that secretaries are stepping into, many offices have started receiving threatening and harassing phone calls and emails about Trump’s eligibility. In New Hampshire, the office of secretary of state Dave Scanlan, a Republican, was flooded with phone calls after conservative personality Charlie Kirk falsely said Scanlan was planning to remove Trump from the ballot. (Scanlan had merely said he was studying the issue.) “We’ve been getting a lot of input, literally hundreds of inquiries, not all of it friendly. I’ll leave it at that,” Fontes said.
“We all have been buried in an uptick of visceral vitriol and threats from people on both sides – people who want us to remove him from the ballot, people who don’t,” Benson said. “We’re also seeing this as the beginning of the rancor that we expect to go through the next 19 months.”
Regardless of the pressures elections officials face, Fontes said he wouldn’t shy away from making an uncomfortable decision.
“We live in a land where the rule of law is the rule of law. And when a determination gets made, a determination gets made,” he said. “If people are dissatisfied with their decisions, if I choose to run for re-election, they’ll be able to speak their voices in a free and fair election to decide whether I should stay in office or not.”
Questions about Trump’s eligibility need to be resolved not just for this election, but for future ones as well, Fontes said.
“This is a question that I think needs to be answered broadly and certainly. I’m looking at this as far more than just about one person and one office,” he added. “This is a systemic sort of thing and it is as big as the constitution itself.”