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.
A post-Civil War provision of the 14th Amendment says any American official who takes an oath to uphold the Constitution is disqualified from holding any future office if they “engaged in insurrection or rebellion.” However, the Constitution does not spell out how to enforce this ban and it has only been applied twice since the late 1800s, when it was used extensively against former Confederates.
New Hampshire Secretary of State David Scanlan, a Republican, said earlier this week 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.
And Michigan Secretary of State Jocelyn Benson, a Democrat, said last week 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.”
Groups of liberal activists and constitutional scholars tried last year to use the 14th Amendment to disqualify several federal and state lawmakers who were particularly outspoken about the January 6 insurrection or had some loose ties to the right-wing attackers. A convicted January 6 rioter who was also a New Mexico county commissioner was removed from office based on 14th Amendment grounds, through a different but related legal mechanism.
But most of their efforts got little traction. Their highly publicized attempts to remove GOP Reps. Marjorie Taylor Greene and Madison Cawthorn from the ballot were unsuccessful. The groups did, however, secure a couple legal victories that could help them as they zero in on challenging Trump’s ballot access in 2024 and they have argued that their case against Trump is stronger than the past cases given his indictments and direct connections to the insurrection.
One of those groups, 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.
These efforts were largely championed by liberal activists, but earlier this month, an array of prominent conservative legal scholars publicly endorsed the idea, whose merits are still being heavily debated in the legal community.
Trump has denied wrongdoing regarding the January 6 insurrection. He has been indicted on federal and state charges in connection with his wide-ranging attempts to subvert the 2020 election, including his role fueling the violence at the US Capitol. He has a commanding lead over his rivals for the GOP primary nomination.
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