In December of 2023, the Colorado Supreme Court ruled that Former President Donald Trump was ineligible to run for President in the upcoming 2024 election and upheld his removal from the state’s primary ballots. The basis of this ruling is rooted in Section 3 of the 14th Amendment, which states that “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.” Because the Colorado Supreme Court found that the storming of the Capitol on January 6th, 2021, had been an insurrection and that Trump had engaged in this insurrection, they legally cemented his disqualification from running for office.
Initially written during the post-Civil War Reconstruction era, Section 3 of the 14th Amendment was intended to bar former government officials who joined the Confederacy from holding certain positions of power. The idea behind this was that if such former confederates, or any future insurrectionists, had the chance to hold these offices, they could have the power to dismantle America’s democracy from within. However, this section wasn’t used to stop former confederates from entering office during Reconstruction for long, and it has since only resurfaced during the First World War. Although with it still in place — and with many considering January 6th a recent insurrection — state officials have recently attempted to remove Trump from their primary ballots using Section 3 as a legal foundation.
Thirty-five states across the country have seen court cases addressing this issue of Trump’s ballot eligibility with varied answers arising from every case. In contention with the Colorado Supreme Court ruling, for example, Minnesota’s Supreme Court ruled that state law allows political parties to have anyone on the ballot, thus meaning that state officials cannot remove any candidates regardless of whether they qualify to run. With so many differing answers to the eligibility question, many now turn to the U.S. Supreme Court for a final answer as they grapple with the Colorado Supreme Court’s decision in the case Trump v Anderson (2024).
On February 8th, the Supreme Court heard oral arguments for the case, where the main issue at play was whether states could enforce Section 3.
Arguing for Donald Trump, Johnathan F. Mitchell claimed that states cannot enforce Section 3 because doing so would change the constitutional qualifications for running for president. For this point, Mitchell heavily relied on a Circuit Court ruling in In re Griffin (1869) — also known as Griffin’s Case. In this case, a person challenged their conviction because the judge hearing the case was a former Confederate who didn’t get the Section 3 disability removed by Congress. In his decision, Judge Samuel Chase asserted that states cannot enforce Section 3 unless enabling legislation was passed by Congress first. This, Mitchell claimed, is sufficient historical background to prove that states cannot enforce Section 3 on their own. Some Justices pushed back against this reliance on Griffin’s Case, noting that tension might arise between requiring Congress to pass enabling legislation and the power the Constitution grants Congress to remove the disability. Considering legislation is passed by a simple majority, the justices were concerned that a majority could effectively reach the same result as removing the disability, which the Constitution requires a supermajority to achieve by withholding enabling legislation. Further, the Justices questioned why Mitchell acted as though Griffin’s Case was binding since it was a decision from a lower court and, therefore, not considered precedent by the Supreme Court.
Additionally, the Justices brought up the other qualifications for president (age, citizenship, and term limits), which states do have the right to enforce without enabling legislation, and asked Mitchell why the Section 3 qualification should be treated differently. To this, he responded that there is something special about the language of Section 3 such that it bars people from holding office rather than running. As such, to remove someone from a primary ballot would be to impose a qualification on them before it is relevant. Or, to put it differently, to ask candidates to show congressional removal of the disability before it is required. This, Mitchell said, essentially allows states to change the requirements for running, as someone would need to prove they are either not an insurrectionist or allowed by Congress to hold office before the election even occurs.
In contrast, the counsel for the respondent, Jason C. Murray, argued that states can enforce Section 3 without enabling legislation, just like any other constitutional qualification. Considering the states’ power to run presidential elections under Article II of the Constitution, Murray argued that states are allowed the discretion to remove those candidates who don’t qualify for office from their ballots. Thus, Section 3 simply adds another qualification that a candidate must meet to be eligible for office. However, the Justices showed great concern about the impact of allowing 50 different states with different laws to individually enforce Section 3. At the root of this “uniformity concern,” as Justice Kentanji Brown Jackson called it, is the idea that each state’s laws grant the Secretary of State slightly different powers to enforce such qualifications. Such differences were already playing out before oral arguments, as shown by the different decisions of the Minnesota and Colorado Supreme Courts. Similarly, a review of Trump’s eligibility to run under Section 3 in different states could yield different results depending on how his case is evaluated and what evidence is allowed. For example, one state could allow the Congressional report on January 6th, whereas another state could dismiss it as hearsay, thus causing states to reach different conclusions about Trump’s engagement in an insurrection. Having different approaches to enforcing Section 3 could lead to issues regarding voting rights, as Justice Elena Kagan explained. Even if only a few states remove Trump from the ballot, she claimed, they could have an immense impact on Trump’s ability to win his party’s nomination due to a limited number of available delegates. The Justices repeatedly asked Murray to grapple with such problematic consequences. In attempting to do so, he argued that states already have differing approaches to removing candidates from ballots that don’t lead to such dire situations. Additionally, he implored the Court to use its decision to straighten out issues like the one at hand, such that less room for variability would be left to the states.
From these arguments, ruling in favor of Trump would assert that states cannot enforce Section 3 and, thus, cannot remove Trump from primary ballots. Conversely, ruling in favor of Anderson would assert that states can decide, based on their individual laws, if Trump will be on their ballots. With Super Tuesday approaching in early March, experts urge the Court to expedite its release of a decision. Due to the gravity of the questions before the Court, many legal scholars have called upon the Court to avoid making a narrow or technical decision for fear of backlash and instead clearly decide if Trump — and other potential insurrectionist candidates in the future — is eligible to hold office once and for all.
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