The Potential Disqualification of Former President Donald Trump From 2024 Ballots

As the nation readies itself for a divisive and likely messy election year, state courts across the country are deliberating on the question of whether former President Trump can be included on their primary ballots. Following the January 6 insurrection, Trump has faced legal investigations, a Senate trial, an impeachment inquiry, and numerous social media restrictions. However, taking Trump off of primary ballots would be unprecedented, as no presidential candidate has ever been accused of breaking an oath to the country or being an insurrectionist, so there is no Supreme Court precedent specifically relating to the matter. 

These challenges are based on Section 3 of the 14th Amendment, which was enacted to keep former Confederates from resuming government positions following the Civil War. The section states that “No person shall … hold any office… under the United States, or under any state, who, having previously taken an oath … as an officer of the United States… to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the state, or given aid or comfort to the enemies thereof.” However, the next clause states that provided that Congress votes and achieves a two-thirds majority, the previous clause can be dismissed. 

While Donald Trump didn’t storm the Capitol on January 6, previous investigations, such as that of the House committee on the matter, have determined that his actions during the insurrection amount to inciting, assisting, and giving “aid or comfort” to an insurrection. The committee’s report cited his summoning of supporters to Washington, his fiery speech before the violence and tweets during it, and his refusal to call off rioters. A federal criminal suit brought by the

Department of Justice in August 2023 aims to prosecute Trump for these and other crimes, though the case is still ongoing. 

Based on this evidence, cases have arisen to disqualify Trump from the primary ballot in 30 states, with 14 suits currently active. As of now, Maine and Colorado are the only states to bar him, with California ruling to keep him on the ballot, and Michigan and Minnesota ruling that election officials cannot control who the Republican Party puts on their ballots in the states. 

Those who support the measures argue that since Trump did hold office under the United States, swore an oath to protect the Constitution, and subsequently broke it on January 6, he cannot return to office, barring a two-thirds Congressional vote. Additionally, according to a Congressional Research Service report, a criminal conviction is not necessary for the application of Section 3. In the Colorado Supreme Court’s ruling, the justices resolved that the office of the presidency is included in the various offices that one cannot hold after engaging in an insurrection. Maine, the second state to bar Trump from a primary election ballot, followed the lead of Colorado’s decision, with Secretary of State Shenna Bellows ruling that Trump is ineligible. This order can take effect after the court rules on appeals from Trump, which he has done. 

In response to these emerging cases, Trump’s lawyers and various legal scholars have presented arguments that this Section does not apply in this scenario. One key argument is that the president is not an officer under the US, and the term would rather apply only to government appointees. Another point raised is that the question is political and therefore for Congress to answer in the form of legislation as opposed to rulings of the courts. The term “insurrection” and what it means to “engage” in it also raises questions, such as that Trump only exercised his right to free speech, and that state courts aren’t able to determine whether January 6 was an insurrection or not. This ambiguity is brought up by University of Richmond law professor Kurt Lash, who in a recent op-ed emphasizes the catchall nature of the provision, a lack of public discourse and due process on the matter, and the nature and magnitude of these cases in his reasoning.

So far, California, Michigan, and Minnesota have upheld Trump’s eligibility to appear on their primary ballots. Authorities in California stated that this decision is due to the state lacking the explicit authority to remove candidates, Michigan stated that only political parties can determine who is eligible for primaries, and Minnesota dismissed a case aiming to prevent Trump from the primary ballot. A decision is being awaited in Oregon on the matter there. In each of these instances, the door has been left open for future cases involving the general election, as this would likely be in the state’s jurisdiction rather than that of political parties. 

In the coming weeks and months, this situation will continue to evolve as cases continue to appear in other states and the Supreme Court potentially involves itself. While there are few effects at the moment, the impacts of these decisions are significant. Some Secretaries of State have announced that Trump remains on their ballots, though other states could be emboldened by these decisions to remove Trump from their primaries. The Supreme Court has never ruled on the meaning of Section 3 but could rule in a variety of ways, including dodging the central question on legal technicalities. However, as Rick Hasen, a law professor at UCLA comments, “It is imperative for the political stability of the U.S. to get a definitive judicial resolution of these questions as soon as possible.”