April 19, 2023
Donald Trump’s campaign team is preparing for a state-by-state legal battle later this year over untested claims that a Civil War-era clause in the U.S. Constitution bars the former president from appearing on Republican primary ballots because of his role in the January 6, 2021, insurrection, reports The Washington Post.
Two nonprofit groups who do not disclose all their donors—Citizens for Responsibility and Ethics in Washington (CREW) and Free Speech For People—have prepared multipronged legal strategies to challenge Trump across the country under Section 3 of the 14th Amendment. They have written letters to state election officials, calling on them to block Trump from the ballot; while separately preparing voter lawsuits and state election board complaints.
Section 3—ratified in 1868 to punish Confederate officials after the war—disqualifies any “officer of the United States” from future public office who, after taking an oath to support the U.S. Constitution, has “engaged in insurrection or rebellion against” the country. Attorneys at both groups argue that Trump’s role before and during the January 6 riot is evidence he “engaged in insurrection”—a claim that was specifically endorsed by the House select committee that investigated the attack.
“It is a strategy designed to enforce the Constitution to bar Trump from serving as president,” CREW Chief Counsel Donald Sherman said of the legal efforts. “We have had two major insurrections in this country. One was the Civil War, which gave rise to Section 3. And one was January 6.”
But there is little recent legal precedent to guide courts on how to apply Section 3. Opponents of the effort are likely to argue that state elections officials have a ministerial role that does not allow them to bar candidates under the constitution. They will likely also argue that Trump did not engage in an “insurrection”—that Section 3 should not apply to a candidate before an election and that there needs to be an act of Congress to enforce Section 3. Legal scholars have also raised questions about whether a former president who has never served in another office counts as an “officer” under the clause.
“What these undemocratic organizations are doing is blatant election interference and tampering,” Trump campaign spokeperson Steven Cheung said in a statement. “They are not even trying to hide it anymore and it is sad they want to deprive the American people of choosing Donald Trump—the overwhelming front-runner by far—as their president. History will not judge them kindly.”
Opponents also warn of the damage judges or election officials would do to the electoral process if they intervene to deny Republican voters the option of choosing Trump after much of the campaign season has passed. The Section 3 challenges cannot be filed until Trump applies for or is granted ballot access late this year, attorneys say, giving the courts just a matter of months to decide on the merits of the claim before votes are cast in the nomination fight.
“The practical implications of this is the greatest disruption of our electoral system that has been contemplated since the Civil War,” said James Bopp, a conservative attorney who represented two members of Congress last year whose ballot access was unsuccessfully challenged under Section 3. “On a practical level, this is so cynical and would be so destructive, it is actually in my view beyond comprehension.”
Finally, lawyers on both sides of the issue say if a judge ruled that Section 3 applies in any state, the case would likely be immediately appealed to federal court and potentially fast-tracked to the Supreme Court for review.
Research contact: @washingtonpost
