Updated Aug 31, 2023 - Politics & Policy

States look to see if 14th Amendment can be used to disqualify Trump — but it has risks

Former President Trump on Aug. 24 in Atlanta, Georgia. Photo by Joe Raedle/Getty Images

State election officials are raising questions about whether the 14th Amendment can be used to stop former President Trump's 2024 bid.

Why it matters: As Trump remains the GOP presidential frontrunner after four indictments in four months, questions loom on whether his alleged efforts to overturn the 2020 election and his role in the Capitol riot are enough to disqualify him through the Civil War-era amendment.

Be smart: Section 3 of the 14th Amendment states that no one should hold office in the U.S. if they "have engaged in insurrection or rebellion against the [U.S.], or given aid or comfort to the enemies thereof."

  • "But Congress may by a vote of two-thirds of each House, remove such disability," the provision continues.

How it works: The qualification to appear on a ballot for state or federal office is a function of state law and undertaken by the state Secretaries of State.

  • As such, state courts – and possibly federal courts – may have a role to play here, per civil rights attorney Sherrilyn Ifill.

Driving the news: Advocacy group Free Speech For People, sent letters to election officials in Florida, Ohio, Wisconsin, New Hampshire and New Mexico on Wednesday, asking them to use their authority to exclude Trump from the ballots.

  • They argued that under the 14th Amendment, Trump "is constitutionally ineligible to appear on any future ballot for federal office based on his engagement in insurrection against the United States."
  • New Hampshire Secretary of State David Scanlan, a Republican, said in a statement this week that while he hasn't taken a position on the matter, he's asked the state's attorney general to advise him on the "provision's potential applicability to the upcoming presidential election cycle."
  • The attorney general's office is now "carefully reviewing the legal issues involved," per the statement.

Meanwhile, in last week's GOP presidential debate, former Arkansas Gov. Asa Hutchinson brought up the amendment, saying: "More people are understanding the importance of that, including conservative legal scholars, who says [Trump] may be disqualified under the 14th Amendment from being president again as a result of the [Jan.6] insurrection."

Between the lines: Special counsel Jack Smith didn't charge Trump with insurrection or rebellion in the election fraud case. But the provision doesn't indicate a need for a criminal indictment or conviction.

  • "Trump's constitutional disqualification from serving in elective office requires an assessment and evaluation that is not dependent on any criminal findings," Ifill said.

Yes, but: Trump has used the legal cases against him to bolster his campaign and further his claims of election interference and fraud.

  • If he's disqualified through the 14th Amendment, it could ramp up his base.

For the record: The Constitution doesn't describe how to enforce the disqualification and it's only been used twice since the late 1800s against former Confederates, per CNN.

  • And if a secretary of state – or a group of them – took such an action, it would likely be challenged in court.

Catch up quick: Trump was indicted in July on four criminal counts for his alleged efforts to overturn the results of the 2020 election.

  • Trump was charged with conspiracy to defraud the U.S., conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights.

What they're saying: Ifill, who was recently named the inaugural chair of the 14th Amendment Center for Law & Democracy at Howard Law School, told Axios she has "no doubt" that Section 3 of the 14th Amendment can be applied to Trump.

  • "I am convinced that Section 3 was designed to protect our democracy against precisely the threat that the former President constitutes to our republic," she said.
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