Is Donald Trump eligible to run for U.S. president again? What is the role for courts and state election officials in making that determination, and what legal standard should apply if a political candidate is accused of insurrection?
These are the questions experts say are likely to be weighed quickly by the U.S. Supreme Court in the coming weeks — or even days — now that two states have disqualified Trump from appearing on their Republican presidential primary ballots. The decisions stem from legal challenges being pursued in several states that argue the former president violated the so-called “insurrection clause” of the U.S. Constitution.
With the state primaries fast approaching and several similar cases still pending, all eyes are turning to how the Supreme Court will treat the issue.
A federal appeals court is set to weigh on whether Trump can be prosecuted for his efforts to overturn the 2020 election and his actions leading up to the Jan. 6, 2021, attack on the U.S. Capitol — a case that’s still set to go to trial in early March. But the Supreme Court may not agree with the argument some states are making that he is constitutionally barred from running, experts say.
“I think it’s likely they will rule quickly and may even rule for Trump,” said Stuart Streichler, a constitutional law expert and professor at the University of Washington.
“Even putting aside whether he engaged in insurrection or not, there is a lot for the court to consider here.”
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Section 3 of the 14th Amendment to the U.S. Constitution bars anyone from holding public office if they engaged in “insurrection or rebellion” after previously swearing an oath in support of the Constitution as “an officer of the United States.”
The provision was enacted in 1868 after the Civil War to prevent former members of the pro-slavery Confederacy from serving in the U.S government.
The legal cases pursued in 32 states by advocacy groups and some anti-Trump voters argue Trump violated Section 3 by urging his supporters to gather in Washington, D.C., on Jan. 6, 2021, to stop Congress from certifying Joe Biden’s victory in the 2020 election. The plaintiffs say the resulting storming of the Capitol, which delayed the certification, was an attempted insurrection supported by Trump.
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Although Trump himself has not been charged or convicted of insurrection, a number of far-right militia members who participated in the attack have been convicted of seditious conspiracy against the U.S. government.
Colorado became the first state to bar Trump from the primary ballot under Section 3 last week, when the state supreme court ruled in a 4-3 decision that Trump was not eligible to run again. The decision overturned a lower court ruling that found Section 3 does not apply to the presidency, despite determining that Trump had engaged in insurrection.
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On Thursday, Maine Secretary of State Shenna Bellows, a Democrat and the state’s top elections official, used her constitutional power to bar Trump from her state’s primary ballot as well.
Both decisions include a pause on enacting Trump’s disqualification to allow for the U.S. Supreme Court to weigh in. The Colorado Republican Party has already asked the top court to reverse the state court’s ruling, and the Trump campaign has hinted it may do the same. Bellows’ decision has to be reviewed by the Maine courts before it can move to the Supreme Court.
“In 150 years, no candidate was kept off a ballot for engaging in an insurrection. It’s now happened twice to Donald Trump in the last two weeks. There will be major pressure on the Supreme Court to offer clarity very soon,” Derek Muller, a Notre Dame Law School professor and election law scholar, told the Associated Press.
What other states are hearing these cases?
Making matters more complicated, similar cases in seven states have been dismissed by the courts, with appeals being sought in Arizona and West Virginia. Courts in Minnesota and Michigan that dismissed the Section 3 challenges for the primary said they will allow the plaintiffs to revive their cases for the November 2024 general election if Trump is the Republican nominee.
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Nearly a dozen other states still have cases pending, according to Lawfare, a legal and national affairs website that is tracking the challenges.
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California’s secretary of state has already decided not to remove Trump from that state’s primary ballot, arguing she was guided by “the rule of law” and that candidates’ eligibility should be decided by the courts.
Streichler said if the U.S. Supreme Court takes up the Colorado case, it could include language in its ruling that makes the pending state challenges and appeals obsolete, allowing the justices’ interpretation of Section 3 to apply nationwide.
At the heart of the Section 3 challenges and debates are questions not just about the clause’s scope, but also whether it’s proper for courts to decide on who is eligible to run for election at all.
Trump’s lawyers have argued that only Congress can enforce Section 3 and that the provision doesn’t apply in the former president’s case.
Streichler said he’s inclined to agree with the latter point, adding “reasonable arguments” can be made that the clause only applies to appointed positions, not elected ones. He also points out that Trump has yet to be accused in any criminal case of insurrection or sedition — a charge noticeably absent from the federal election subversion case against him.
“It really boils down to whether this court wants to weigh in on political issues, and they have shown reluctance in doing that,” he said.
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When Trump and his campaign were mounting their legal challenges against the 2020 election results, the Supreme Court refused to take up a single case, allowing state courts to uphold their rulings that affirmed Biden’s victory.
Yet the top court is expected to move quickly in this instance to at least offer guidance on whether the state courts have any standing at all to disqualify Trump.
“It could be a matter of days after the new year,” Streichler said.
Further pressure may come as soon as next week, when the Oregon Supreme Court is expected to rule on whether Trump will qualify for that state’s primary ballot.
An advocacy group behind many of the state lawsuits, Free Speech for People, has said it will continue to file new challenges across the country and is asking secretaries of state to weigh in as well.