The Fourteenth Amendment, Section 3 of the United States Constitution provides:
“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.”
ABC NEWS ARTICLE
On August 25, 2023, ABC News published the following news article written by reporters Hannah Demissie and Laura Gersony entitled “14th Amendment, Section 3: A new legal battle against Trump takes shape” “Efforts to disqualify Trump from state ballots are starting to materialize.” What makes the news article remarkable is that it reports on a legal theory that is being advanced by Republican conservative scholars. It also reports on a New Mexico connection. For that reason the article with edits and highlighting quotations is being posted here:
“Former President Donald Trump‘s legal battles are piling up: in Washington, Georgia, New York and the list goes on. But even if all of those cases work out in his favor, advocates say a new legal challenge could still sideline him.
Separate from the criminal cases, over the past few weeks a growing body of conservative scholars have raised the constitutional argument that Trump’s efforts to overturn the results of the 2020 election make him ineligible to hold federal office ever again. That disqualification argument boils down to Section 3 of the U.S. Constitution’s 14th Amendment, which says that a public official is not eligible to assume public office if they “engaged in insurrection or rebellion against” the United States, or had “given aid or comfort to the enemies thereof,” unless they are granted amnesty by a two-thirds vote of Congress.
Advocacy groups have long argued that Trump’s behavior after the 2020 election fits those criteria. The argument gained new life earlier this month when two members of the conservative Federalist Society, William Baude and Michael Stokes Paulsen, endorsed it in the pages of the Pennsylvania Law Review [where they wrote]:
“If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency.”
Since then, two more legal scholars, retired conservative federal judge J. Michael Luttig and Harvard Law Professor Emeritus Laurence Tribe, made the same case in an article published in The Atlantic [and they wrote]:
“The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. … The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.”
The argument [was made] on the Republican presidential debate stage in Milwaukee [by Arkansas Gov. Asa Hutchinson when he said, eliciting a mix of cheers and boos, from the audience]:
“Over a year ago, I said that Donald Trump was morally disqualified from being president again as a result of what happened on January 6th. More people are understanding the importance of that, including conservative legal scholars. … I’m not going to support somebody who’s been convicted of a serious felony or who is disqualified under our Constitution.”
Baude and Paulsen maintain their theory is “self-executing.” They say that means that public elections officials don’t need special permission from lawmakers to disqualify Trump from the ballot. If they believe the argument is valid, they can disqualify potential candidates on their own.
Not only that, the scholars argue, the election officials are legally required to do so. Bode and Paulsen wrote:
“No official should shrink from these duties. It would be wrong — indeed, arguably itself a breach of one’s constitutional oath of office — to abandon one’s responsibilities of faithful interpretation, application, and enforcement of Section Three”.
Alternatively, ordinary citizens could file challenges on the same grounds with state election officials themselves.
Either scenario is almost certain to face legal and political blowback, and the argument could end up before the U.S. Supreme Court. The most immediate hurdle for those disqualification efforts might be timing as the legal challenges must be brought during specific time periods that vary depending on the state where they are brought.
PLANS MATERIALIZE AT STATE LEVEL
Bryant “Corky” Messner, a lawyer who lives in New Hampshire, became the first person to announce concrete plans to do just that. Messner was endorsed by Donald Trump when he ran for a New Hampshire’s U.S. Senate seat in 2020. Now, he says that as a veteran and a graduate of West Point, his civic duty compels him to try to keep Trump off the ballot. Messner said this:
“I really don’t view myself as turning on Trump, as odd as that sounds. I love this country. I’ve served this country. I’ve taken an oath to this country. My sons are serving right now and I believe someone’s got to step up to defend the Constitution.”
Messner first announced his plans on a local radio show. … He says he is still doing initial legal due diligence on the topic and finding a lawyer to bring the case. He plans to finance the legal challenge himself and through his own personal network.
New Hampshire’s Secretary of State Office confirmed to ABC News that Messner met with Secretary of State David Scanlan to discuss Section 3 of the 14th Amendment. The communications director for Scanlan told ABC News
“Secretary Scanlan will be conferring with the New Hampshire Attorney General and other legal counsel on this issue; however, he believes any action taken under this Constitutional provision will have to be based on Judicial guidance.”
A NEW MEXICO CONNECTION
Citizens for Responsibility and Ethics in Washington (CREW), another legal advocacy group, is also pursuing a push to this effect. Last September, CREW was successful in its effort to remove a New Mexico County Commissioner Couy Griffin from his post due to his participation in the January 6 attack on the U.S. Capitol.
A district judge in New Mexico barred Otero County commissioner and “Cowboys for Trump” founder Couy Griffin, citing a clause in the 14th Amendment that prohibits those who have engaged in insurrection from serving. Griffin was convicted of a misdemeanor trespass charge. The judge’s ruling was the first time in 150 years that the provision has been used to disqualify an official and the first time that a court has ruled the events of January 6 were an “insurrection.”
Griffin was arrested on January 8, 2021, on a federal misdemeanor trespassing charge related to the January 6, 2021 insurrection. Griffin was convicted of the charge on March 22 and sentenced on June 17 to 14 days’ time served, ordered to pay $500 restitution, pay a $3,000 fine, complete community service and one year of supervised release.
Following Trump’s announcement that he would make a third bid for the White House, CREW released a statement saying it would work to ensure that Trump is disqualified from ever holding office again. A statement from CREW said this:
“We warned him that should he decide to run again, we would be taking action to ensure the Constitution’s ban on insurrectionists holding office is enforced. Now we will be. Trump made a mockery of the Constitution he swore to defend, but we will see that it is defended.”
In an interview with ABC News, a CREW official said its focus now is doing whatever possible to keep Trump off the ballot. CREW Executive Vice President and Chief Counsel Donald Sherman said this:
“I will say we are focused on winning. We are not focused on getting our name in the paper … We are focused on bringing the strongest cases possible in order to win and hold the former President accountable. And we are making the strategic choices in order to effectuate that.”
SEPTEMBER 6 NEWS UPDATE:
On September 6 CREW in Washington filed a lawsuit to bar former former President Trump from the primary ballot in Colorado, arguing he is ineligible to run for the White House again under the 14th Amendment of the US Constitution. The complaint was filed on behalf of six Republican and unaffiliated Colorado voters by the group. It will jolt an already unsettled 2024 primary campaign that features the leading Republican candidate facing four separate criminal cases. Liberal group is demanding that states’ top election officials bar Trump under the clause that prohibits those who “engaged in an insurrection or rebellion” against the Constitution from holding higher office. The litigation is the first by an organization with significant legal resources. It may lead to similar challenges in other states, holding out the potential for conflicting rulings that would require the Supreme Court to settle. Colorado’s secretary of state, Democrat Jena Griswold, said in a statement that she hoped “this case will provide guidance to election officials on Trump’s eligibility as a candidate for office.” The lawsuit contends the case is clear, given the attempt by then-President Trump to overturn his 2020 election loss to President Biden and his support for the assault of the U.S. Capitol on Jan. 6, 2021.
Free Speech For People, an organization that unsuccessfully challenged the candidacies of several members of Congress in 2022 under the disqualification clause of the 14th Amendment, also plans to take similar actions to attempt to prevent Trump from running for office.
The organization plans to pursue two different paths. The first path involves sending a letter to all 50 secretaries of state asking them to exercise their authority to rule that Trump is disqualified under Section 3 of the 14th Amendment. The second path, when the timing is right, they said, is to file legal challenges to Trump’s eligibility for office using state law procedures where available.
Ron Fein, a lawyer involved in the organization’s effort to prevent Trump from holding office, told ABC News that they are prepared to take on the former president. Fein said this:
“We’re prepared to challenge Trump’s candidacy in multiple states. We’re not going to tell him which states and when in advance. … We have assembled top-notch legal teams and are working with voters in these multiple states and partners outside as well.”
Trump’s campaign team is preparing for the challenges, telling the Washington Post in April the former president is being targeted. Trump campaign spokesman Steven Cheung said in a statement to the Washington Post said this
“What these undemocratic organizations are doing is blatant election interference and tampering. … They are not even trying to hide it anymore and it is sad they want to deprive the American people of choosing Donald Trump — the overwhelming front-runner by far — as their President. History will not judge them kindly.”
… .
UPHILL BATTLE EXPECTED
“…[T]he efforts to keep Trump off the ballot for his alleged role around the attack on the Capitol and efforts to overturn the election grow … is an up hill battle, due in part because there is no consensus on if January 6 was an insurrection. Kevin Wagner, a professor at Florida Atlantic University, said this:
“The challenge here is that the 14th Amendment isn’t necessarily self-executing. In other words, it doesn’t just automatically happen and there is some question about what it means to be engaged in insurrection or rebellion and how that is defined. The challenge for us is that historically, it hasn’t been well-defined.”
“The question is about what is “participating in a rebellion or an insurrection.” There is dispute and people feel strongly what happened was essentially an insurrection — and it’s often referred to that way fairly regularly — but others have suggested that this was a protest that may have gotten out of hand — and may have even become criminal — but didn’t rise to a level of a rebellion or an insurrection. And the provision of the 14th Amendment really turns on how it is that we assess what happened,” he said.
The links to the quoted article with video and photos are here:
14th Amendment, Section 3: A new legal battle against Trump takes shape originally appeared on abcnews.go.com
CONFLICTING LEGAL OPINIONS
The online politcal news and commentary outlet ‘THE WEEK” reported on August 9:
Trump undeniably “meets the standard” of the 14th Amendment, said Donald K. Sherman at The Hill. “All three branches of the government have identified the attack on the Capitol as an insurrection,” and federal judges, House and Senate majorities, and the bipartisan House January 6 committee have identified “Trump as its central cause.” As Baude and Paulsen, the conservative scholars, note, Trump doesn’t have to be convicted of treason or any other crime to be barred from seeking office. State and federal election officials can make the call on their own. A New Mexico County commissioner has already been booted from public life for recruiting Jan. 6 insurrectionists. Trump is next.
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Alan Dershowitz[a prominent criminal defense attorney] said in his Alan Dershowitz Newsletter … the 14th Amendment doesn’t apply to Trump or any of the Jan. 6 rioters … . The “text and history” of the 14th Amendment make it clear the “disability provision was intended to apply to those who served in the Confederacy during the Civil War.” It was never supposed to empower “one party to disqualify the leading candidate of the other party in any future elections.” Determining who had sided with the Confederacy was easy, but there’s “no formal mechanism” for disqualifying somebody now. We would be left with some states striking Trump from the ballot and others leaving him on, which would trigger “a constitutional crisis” and open the door for Republican states to disqualify candidates who supported rebellious riots over, say, the killing of George Floyd.
Baude and Paulsen rightly point out that Section 3 of the 14th Amendment “did not lapse with the passing of the generation of Confederate rebels, whose treasonous designs for the country inspired the provision,” said former federal appellate judge J. Michael Luttig and Harvard constitutional law professor emeritus Laurence H. Tribe in The Atlantic. The “post-Civil War Framers presciently foresaw” that it would never outlive the purpose it was intended to serve. “To the contrary, this provision of our Constitution continues to protect the republic from those bent on its dissolution.” Any official who has taken an oath to uphold the Constitution is “obligated to enforce” the disqualification clause. This part of the Constitution is worth defending like any other.
The link to the full unedited new article is here:
https://theweek.com/donald-trump/1026134/14th-amendment-disqualify-trump-election
CHALLENGES AHEAD IN BATTLEGROUND STATES
“Election officials in key battleground states are studying the legal viability of efforts to disqualify Donald Trump from running for president, based on the 14th Amendment’s ban on insurrectionists holding public office.
New Hampshire Secretary of State David Scanlan, a Republican, said that he asked the state’s attorney general to examine the matter and advise him on the “provision’s potential applicability to the upcoming presidential election cycle.” The attorney general’s office said it was “carefully reviewing the legal issues.” In the statement, Scanlan said he wasn’t taking a position on the disqualification question and was not “seeking to take certain action” but was going to study the matter in anticipation of lawsuits.
Democrat Michigan Secretary of State Jocelyn Benson said in an interview with MSNBC she would consult with her fellow election officials in other key states and that they will “likely need to act in concert, if we act at all” regarding the constitutional challenges, which she predicted will ultimately be settled “in the courts.”
Free Speech For People, sent letters on Wednesday to the top election officials in Florida, Ohio, Wisconsin, New Hampshire and New Mexico, urging them to invoke the “Constitution’s Insurrectionist Disqualification Clause” and use their authority to “exclude Mr. Trump from the ballot.” They previously sent letters to Benson in Michigan, as well as the secretaries of state in Georgia, Pennsylvania, Nevada and North Carolina.
It seems unlikely that any secretary of state would take such aggressive action like this on their own, and even if they did, it would be immediately challenged in court. Protracted litigation, as happened last year against the GOP lawmakers, is much more likely. Multiple groups have promised to file lawsuits seeking to disqualify Trump.”
The links to the quoted news sources is here:
https://www.cnn.com/2023/08/31/politics/state-efforts-to-disqualify-donald-trump/index.html
SECRETARY OF STATE MAGGIE TOULUSE OLIVER REACTS
Secretary of State Maggie Toulouse Oliver’s office has said that the constitutionality of Trump being on the ballot in New Mexico is a matter that will be studied if and when the time comes:
We’ve been getting inquiries into our office about this. All candidates for 2024 elections are required to file with our office in February 2024. We are aware of and are reviewing the legal theories regarding the 14th Amendment that conclude Donald Trump is ineligible to run for President. If Donald Trump files in New Mexico to run for President, we will make a determination at that time based on our understanding of New Mexico law and the requirements to run for office in New Mexico. Any determination about a specific candidate’s eligibility for the ballot will be made after the candidate filing day in February 2024.
Links to related news sources are here:
https://www.cnn.com/2023/08/31/politics/state-efforts-to-disqualify-donald-trump/index.html
DEAD HEAT POLLING WITH 10% UNDECIDED
On August 1, a new New York Times and Siena College poll revealed that a rematch between President Joe Biden and former President Donald Trump shows the two men locked in a dead heat. The poll was conducted July 23-27, found if the election were held now, 43% of respondents would vote for Biden and 43% would support Trump.
A solid 10% of respondents declined to put their support behind either candidate, with 4% saying they would back another person’s bid, 4% undecided and 6% saying they would not vote at all if left with these two choices.
The polling also revealed neither apparent frontrunner favorably. The Times and Siena College poll found 55% of respondents view Trump unfavorably while 54% said the same about Biden. In June, a CNN/SSRS poll found 31% of registered voters did not view Biden or Trump positively.
https://ny1.com/nyc/all-boroughs/news/2023/08/01/poll-shows-biden–trump-in-dead-heat-in-2024
COMMENTARY AND ANALYSIS
Anyone who believes the national polling at this point is foolish. Both men have a strangled hold over their respective parties despite the strong desires of their parties wanting different candidates at the top of the tickets. Given the volatility of the electorate, anything can and will likely happen to change the final outcome.
Court challenges to remove candidates on the ballot is very common in New Mexico. Usually, those challenges relate to qualifying nominating signature petitions and residency requirements.
In the long run, it’s more likely than not efforts to remove Trump from the ballot will be confined to the seven individual swing states to keep Trump off the ballot as opposed to an effort made in all the states.