Kicking Trump out of the vote won’t be easy. This is why

Kicking Trump out of the vote won’t be easy. This is why

David Lauter

Dec. 24, 2023

The argument that the Fourteenth Amendment to the Constitution bans Donald Trump from voting has quickly faded from obscurity to the top of the political agenda.

When I wrote in August about why the 14th Amendment should be taken seriously and how it had the potential to upend the 2024 presidential campaign, many people doubted the issue would get attention.

Now it’s about to go before the U.S. Supreme Court. Within a few weeks, the justices will almost certainly announce they will review Tuesday’s Colorado Supreme Court ruling barring Trump from the state’s primaries.

But going to the Supreme Court may prove to be the easy part. To win the case, Trump’s opponents must overcome some major hurdles. Perhaps the most serious stems from Congress’ inability to take action in response to the January 6, 2021 attack on the Capitol.

The 4-3 ruling by Colorado’s highest court found that Trump’s role in the Jan. 6 attack amounted to involvement[ing] in the event of an uprising. Under the 14th Amendment, this means Trump cannot hold any federal office, including the presidency, the Colorado court ruled.

The 14th Amendment was added to the Constitution after the Civil War. Paragraph 3 of the amendment, written to


former leaders of the Confederacy

from the government,

says this:

No person shall be a Senator or Representative in Congress, or an elector of the 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 a state legislature, or as an executive or judicial officer of any state, in support of the Constitution of the United States, has been engaged in insurrection or rebellion against the same, or aid or comfort given to the enemies thereof. But Congress, by a vote of two-thirds of each House, may eliminate such disability.cq/sw

The gist is clear: A person who has taken an oath as an officer of the United States and subsequently engaged in insurrection or rebellion cannot hold any office, civil or military, under the United States unless two-thirds of Congress votes to do so. to stand. .

The details, however, are tricky. Among the unresolved questions:

Who is an officer of the United States? Is the presidency covered? What does the text mean by revolt or rebellion? Does the January 6 attack on the Capitol qualify? Who gets to decide whether someone is guilty of an uprising? Can that be decided without a trial?

The Colorado court ruling applies only to Colorado. But logically, if the Constitution bans Trump from office, the ban applies in all states. He either qualifies or he doesn’t. That’s why the U.S. Supreme Court will almost certainly hear the case. It is the only body that can guarantee the uniformity of the law throughout the country.

Of the nine justices on the Supreme Court, six are Republicans. But partisanship may not save Trump; the justices have already shown their willingness to reject him, for example rejecting calls from his allies after he lost the 2020 presidential election.

Trump’s lawyers argue that the amendment does not apply to the presidency. The text specifically mentions senators and representatives, they note, but does not mention the president.

The Colorado Supreme Court rejected that argument. Any office, civil or military, clearly includes the highest office in the land, the judges said. Any other reading would conflict with the amendment’s purpose of preventing rebels from regaining power.

President Trump asks us to state that Section Three disqualifies any oath-breaking insurrectionist except the most powerful, and that it bar oath-breakers from virtually every office, state and federal, except the highest in the land, they wrote, noting the alleged exception emphasized. for the presidency. According to them, that would be contrary to the clear language and history of Section Three.cq/sw

Most legal scholars who have written about the 14th Amendment take this side.

The other questions have led to more disagreement.

What about the January 6 uprising? The riot was a violent attack on the seat of government and temporarily disrupted business in Congress. But it was a far cry from the Civil War, which killed 2% of the entire US population, equivalent to 6 million people today. What exactly did the authors of the 14th Amendment have in mind when they wrote insurrection or rebellion?

These are demanding terms, covering only the most serious uprisings against the government, such as the Whiskey Rebellion and the Civil War, wrote Stanford Law School professor Michael McConnell, one of the scholars who has argued for a narrow interpretation of what is being said. treated. The terms of Section 3 shall not be defined to include merely riots or civil disturbances common in the history of the United States.



Other scholars have taken the opposite view.

If January 6 was an insurrection, then so was Trump


in the?

That is not merely a legal question; it is a question of fact that is normally resolved by a lawsuit. However, the 14th Amendment doesn’t say it applies to people who are


of rebellion


instead of


it forbids those who have


in a. That suggests that anything less than a full criminal trial may be sufficient


but there clearly needs to be a process in place to decide whether a particular individual is covered.

In Colorado, state


District Judge Sarah B. Wallace held a five-day hearing starting in October. 30, in which she gave evidence about January 6. In mid-November, she ruled that Trump was involved in the insurrection.

But was that hearing fair? Trump’s lawyers say no, as does one of the Colorado Supreme Court’s three dissenting justices, Carlos Samour Jr.

The hearing was stripped of many basic protections that normally accompany a civil trial, let alone a criminal trial, he wrote in his dissent. I have been involved in the legal system for thirty-three years now, and what took place here is nothing like what I have seen in a courtroom.

Even if the U.S. Supreme Court finds that the trial was fair, it is highly unlikely that the justices would allow a single state court judge to make a factual ruling for the entire country. But it seems equally undesirable to let each of the fifty states make its own decision.

and probably invite

a cacophony of contradictory statements.

That is the central problem of the whole case, Samour wrote, warning of the potential chaos caused by an imprudent, unconstitutional and standard-less system in which each state is allowed to adjudicate Section 3 disqualification cases on an ad hoc basis.

The Supreme Court rules on the law, not


factual findings, so it is unable to create a fair decision-making process


Trump or anyone else is an insurrectionist.

Congress is the only body that could solve the problem. It could do what a previous Congress did after the Civil War

: create, by law,

a procedure for deciding who has engaged in conduct that falls within the prohibition of the 14th Amendment.

However, that’s not going to happen. Since January 6, Trump’s Republican allies have blocked lawmakers from taking action

am working on it

outside holding hearings. Their support saved Trump from conviction after he was impeached

about the attack on the Capitol.

Now there is a good chance that the Supreme Court will rule that the 14th Amendment cannot be enforced against Trump because there is no due process to determine the relevant facts.

If so, Congress’s blockade on accountability will have won a crucial victory.


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