September 19, 2023
Nine California legislators have asked the state’s attorney general to seek a court opinion on whether former President Donald Trump is disqualified from office under the 14th Amendment, reports The New York Times.
In a letter sent on Monday, September 18, the lawmakers sought a court opinion on whether Trump should be excluded from Republican primary ballots under the 14th Amendment.
The letter represents part of an escalating effort across multiple states to establish whether Trump’s attempts to overturn the 2020 election—including his actions before and during his supporters’ storming of the Capitol on January 6, 2021—disqualify him from the presidency under the amendment. It says that anyone who “engaged in insurrection or rebellion” against the Constitution after taking an oath to defend it is ineligible to hold office.
“The purpose of this letter is to request in haste [that] the office of the attorney general seek the court opinion as to whether or not Donald J. Trump should be removed from the ballot of the presidential primary election scheduled in California on March 5, 2024,” the letter says.
It describes Mr. Trump’s actions and tells Attorney General Rob Bonta, “You are uniquely positioned to proactively seek the court’s opinion to confirm Mr. Trump’s inability to hold office given these facts.”
Eight members of the California Assembly — Mike Fong, Mike Gipson, Corey Jackson, Alex Lee, Evan Low, Kevin McCarty, Stephanie Nguyen, and Philip Ting—and one member of the California Senate, Josh Becker, signed the letter. All nine are Democrats.
Low, who wrote the letter, said that he saw calls for secretaries of state to unilaterally remove Trump from ballots as politically problematic and arguably antidemocratic, and that ordinary lawsuits would not resolve the question quickly enough. California law requires the secretary of state to announce by December 8 which candidates are eligible for the ballot.
“Having one official do it themselves in their own interpretation is politically not expedient, nor does it help on the division of our democracy,” he said, expressing concern about violence from the right if officials acted unilaterally. “This naturally will be seen as a political effort, but again that’s why the court’s opinion will be incredibly important.”
Low said he and the other lawmakers were “trying to not make this a political issue but rather a constitutionality issue.”
They believe, based on conversations with legal advisers, that Bonta has the ability to seek declaratory relief—essentially asking a court to tell him what his legal obligations are outside the context of a traditional lawsuit. The letter did not identify a specific court.
A spokesperson for Bonta said: “We are aware of the letter and will review the request internally. There is no denying that Donald Trump has engaged in behavior that is unacceptable and unbecoming of any leader—let alone a president of the United States. Beyond that, we have no additional comment.”
Even if a court ruled that Trump were ineligible, it would not definitively resolve the question. Trump or his campaign would be certain to appeal, and the Supreme Court would most likely have the final say.
The argument has been percolating since the January 6 attack, but gained traction this summer after two conservative law professors, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, concluded that Trump was disqualified. Two other prominent scholars—the conservative former judge J. Michael Luttig and the liberal law professor Laurence H. Tribe—made the same case in The Atlantic.
The 14th Amendment was written in the context of Reconstruction, and the disqualification clause—Section 3— originally was used to bar people who had fought for the Confederacy from holding office. The clause’s modern application has not been tested in a case anywhere near as prominent as Trump’s. The outcome will depend on how the courts answer several questions, including what counts as insurrection and even whether the amendment applies to the presidency.
Several constitutional law experts have told The New York Times that they feel unprepared to weigh in or to guess how judges will rule—describing the questions as complex and novel.
“I think anybody who says that there’s an easy answer is probably being a little reductive in their analysis,” Anthony Michael Kreis, an assistant professor of law at Georgia State University, said in a recent interview.
Research contact: @nytimes