Keira Giacometti

29 February 2024

Recently, there have been arguments regarding states’ power to ban Donald Trump from being on the presidential ballot in the primaries, as a result of the convoluted wording of the 14th amendment. This conflict reached a boiling point on December 19th of last year when the Supreme Court of the State of Colorado ruled, in a 4-3 decision (1), that former President Donald Trump was barred from running for re-election in their state’s primaries. On December 29th, Maine’s head of state likewise decided that Trump would not be allowed to run in their presidential primary (2). These decisions are shocking, but not unexpected. Ever since the January 6th insurrection, legislators across the country have been trying to prevent Trump from winning four more years as president of the United States; before the Colorado decision, the Supreme Courts of both Michigan and Minnesota had (2). The Trump campaign has vehemently protested against these actions. In a statement made by spokesperson Steven Cheung in regards to the Maine ruling, he stated “Democrats in blue states are recklessly and unconstitutionally suspending the civil rights of the American voters by attempting to summarily remove President Trump’s name from the ballot” (2). The Maine ruling has been appealed to the Maine Supreme Court, who are looking into the verdict and determining if the decision is legal (2). Should the appeal be rejected, Trump will be banned from Maine’s primary ballot, while Colorado’s case is headed to the Supreme Court (2)(3). 

However, Cheung’s argument falls flat upon inspection of the 13th, 14th, and 15th amendments, which were created after the Civil War (4). These amendments to the American Constitution abolished slavery (5), granted American citizenship to anyone born or naturalized in the U.S (6), and guaranteed that a man’s right to vote was not denied based on his skin color (7). The amendments tried to rectify the main conflicts between the North and South, as well as keep Confederates out of office. During the drafting of the amendments, the United States government determined the Confederacy to be an insurrection; they had split from the North and fought for a new government, one that would respect and honor their wishes for power over a federal law so that they could amend or abolish laws they didn’t support, especially in regards to slavery (8). In order to protect that for which the U.S. government stood for, a clause was added to the 14th Amendment that states: 

No person shall […] hold any office, civil or military, under the United States, [… who has] engaged in insurrection or rebellion […] . (9)

So, how would this clause be applied to Donald Trump?

January 6th  is considered an insurrection by Congress (10) —even though they failed the impeachment vote––meaning the impeachment charges brought against President Trump should prohibit him from running for reelection. The former president did nothing to stop the storming of the Capitol. Leading up to the insurrection, he regularly “issued false statements asserting that the Presidential election results were the product of widespread fraud” and in his numerous Twitter posts and speeches, made comments that in context, encouraged the events on January 6th (11).  In one of his speeches, he rallied the crowd, saying “Hope Mike is going to do the right thing. If Mike Pence does the right thing, we win an election” (12). Trump wanted Mike Pence to invoke the Electoral Count Act, which according to conservative lawyer John Eastman, would have given Pence the ability to determine some electoral votes invalid and throw out some states’ votes (13). This is a power Mike Pence does not have. The Electoral Count Act does make it clear that the role of vice president is ceremonial, and they have no power to discount votes (13). 

Whether Trump understood the Electoral Count Act’s true meaning is irrelevant.  He still egged on a group of his supporters to storm a democratic institution and risk not only politicians and police officers’ lives, but also the protestors’ lives, all in the name of ‘fake’ news and a ‘miscounted’ election. Due to this, the 14th Amendment should be applicable. Yet, there is one stipulation. 

The authors of the 14th Amendment never wrote down how it was to be used. Does the national government ensure Trump cannot run? Or, does the state? 

As decreed by the 10th Amendment of the U.S Constitution, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (14). Since the 14th Amendment does not specify who is to prevent insurrectionists from running, the states are allowed to decide by themselves if the insurgents are allowed to run for office. Had the authors of the 14th Amendment explicitly stated that Congress had to decide if an enemy of the state is allowed to run for office, this argument would have some weight. Alas, they did not, and thus, the states have begun to make their own decisions.

In addition to Colorado and Maine, Arizona, Alaska, Nevada, New Jersey, New Mexico, New York, Oregon,  South Carolina, West Virginia, Wisconsin, and Wyoming have pending lawsuits to remove Trump from their primary ballots (15). Florida, New Hampshire, and Rhode Island’s lawsuits have been dismissed due to their respective state supreme courts, each ruling that the state’s Republican party controls who appears on the primary ballot and that little evidence was provided by the filers (15). Because Colorado’s decision is headed to the Supreme Court, there is a very strong possibility that these other lawsuits will fall through as well, regardless of how legally sound they are.

It makes sense for Colorado’s ruling to go to the top court in the country because only it can rule on the 14th Amendment. Jay Sekulow, the head of the Colorado Republican Party, told the Supreme Court that Colorado’s case demonstrates a national constitutional crisis because a voter will be able to disqualify any political candidate, which could potentially affect future elections. (13). A ruling by the Supreme Court would establish once and for all whether or not Trump, and future candidates for office, will be able to run. 

With the amount of controversy this case is garnering, as well as the fact that Trump will most likely be the primary Republican Candidate for the 2024 Election, the decision is ultimately going to be in the hands of the Supreme Court.

So, the Colorado case can be ruled in one of two ways. If the Supreme Court decides Trump is allowed on the primary ballots, then he will be on the ballot. The action would be judicial activism—the philosophy that courts can and should make decisions beyond the applicable law to consider the societal implications of the decisions (16)—and would set a precedent that Congress and state governments would have to follow regarding the applications of the 14th Amendment in the future. New policies would be drafted to fit the decision. More than likely, these policies would determine who—the states or Congress—is allowed to decide a congressional candidate’s eligibility. However, if the Supreme Court rules against Trump’s appeal, then the 14th amendment clause will stay as is, and the states will get to decide whether or not they will allow Trump on their ballot. Though, it should be noted that many analysts say the Court will side with Trump due to the conservative majority, including the three justices he appointed. 

Additionally, this issue can be prevented in the future. If Congress drafts a new bill that explicitly states who has the power to prevent an insurrectionist from running for office (and it passes by ⅔ of a vote), it will supersede the 14th amendment’s clause and become the new law (17). This would clarify most of the arguments presented by the states and by Trump. Of course, this bill would not be passed by the primaries, but it is a feasible solution, should this issue continue.

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Image by TapTheForward Assist via Wikimedia Commons under Attribution-Share Alike 4.0 International license, https://en.m.wikipedia.org/wiki/File:DC_Capitol_Storming_IMG_7951.jpg

Works Cited

(1) “Colorado Ruling Fuels Efforts in Other Blue States to Bar Trump from the Ballot.” POLITICO, 21 Dec. 2023, http://www.politico.com/news/2023/12/21/colorado-trump-ruling-blue-states-00133009. Accessed 4 Feb. 2024.

(2) Cohen, Marshall. “Maine’s Top Election Official Removes Trump from 2024 Primary Ballot | CNN Politics.” CNN, 28 Dec. 2023, http://www.cnn.com/2023/12/28/politics/trump-maine-14th-amendment-ballot/index.html.

(3)  Howe, Amy. “Supreme Court Agrees to Hear Trump Plea to Remain on Colorado Ballot.” SCOTUSblog, 5 Jan. 2024, http://www.scotusblog.com/2024/01/supreme-court-agrees-to-hear-trump-plea-to-remain-on-colorado-ballot/.

(4) “(1865) Reconstruction Amendments, 1865-1870 •.” Blackpast, 21 Jan. 2007, http://www.blackpast.org/african-american-history/reconstruction-amendments/#:~:text=Amendments%2013%2D15%20are%20called.

(5) National Constitution Center. “The 13th Amendment of the U.S. Constitution.” National Constitution Center – Constitutioncenter.org, 2022, constitutioncenter.org/the-constitution/amendments/amendment-xiii.

(6) National Constitution Center. “The 14th Amendment of the U.S. Constitution.” National Constitution Center – Constitutioncenter.org, 2022, constitutioncenter.org/the-constitution/amendments/amendment-xiv.

(7) National Constitution Center. “The 15th Amendment of the U.S. Constitution.” National Constitution Center – Constitutioncenter.org, 2022, constitutioncenter.org/the-constitution/amendments/amendment-xv.

(8) PBS. “Causes of the Civil War | History Detectives | PBS.” Www.pbs.org, www.pbs.org/opb/historydetectives/feature/causes-of-the-civil-war/#:~:text=A%20key%20issue%20was%20states.

(9) National Archives. “14th Amendment to the U.S. Constitution: Civil Rights (1868).” National Archives, 7 Sep. 2021, www.archives.gov/milestone-documents/14th-amendment#:~:text=No%20State%20shall%20make%20or.

(10) “Read: McConnell Speech After Trump’s Impeachment Trial Acquittal.” U.S. News, 2021, Feb. 14, https://www.usnews.com/news/politics/articles/2021-02-14/read-mcconnell-speech-after-trumps-impeachment-trial-acquittal 

(11) “President Donald Trump | Constitution Annotated | Congress.gov | Library of Congress.” Constitution.congress.gov, 2024, constitution.congress.gov/browse/essay/artII-S4-4-9/ALDE_00000035/.

(12) CNN, Peter Nickeas. “Pro-Trump Supporters Have Flooded DC to Protest President’s Election Loss.” CNN, 21 Jan. 2021, www.cnn.com/2021/01/06/politics/pro-trump-supporters-dc-protest/index.html.

(13): Fortinsky, Sarah. “Trump Says He Wanted Pence to Overturn the 2020 Election and Falsely Claims It Was Vice President’s “Right” | CNN Politics.” CNN, 31 Jan. 2022, http://www.cnn.com/2022/01/30/politics/trump-pence-2020-election/index.html.

(14) The Constitution Center. “The 10th Amendment of the U.S. Constitution.” National Constitution Center – Constitutioncenter.org, 2022, constitutioncenter.org/the-constitution/amendments/amendment-x.

(15) Reporter, Kaitlin Lewis Night. “All the States Trying to Kick Trump off the Ballot and Where Cases Stand.” Newsweek, 28 Dec. 2023, www.newsweek.com/all-states-trying-kick-trump-off-ballot-where-cases-stand-1856331.

(16): Cornell Legal Information Institute. “Judicial Activism.” LII / Legal Information Institute, http://www.law.cornell.edu/wex/judicial_activism.(17): The White House. “The Constitution.” The White House, the white house, http://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/.