Efforts to Keep Trump Off 2024 Ballot Move Through State Courts

UPDATE: On December 19, 2023, the Colorado Supreme Court ruled that Donald Trump was disqualified from holding the office of president under Section 3 of the 14th Amendment, and barred the Colorado secretary of state from listing him as a candidate on the state’s presidential primary ballot. On March 4, 2024, the U.S. Supreme Court overturned the Colorado Supreme Court’s decision, holding that only Congress may disqualify candidates for federal office under Section 3 of the Fourteenth Amendment.

Cases aiming to disqualify Donald Trump from the 2024 presidential election for his role in the January 6, 2021, attack on the U.S. Capitol are making their way through state courts, including in Colorado, Minnesota, and Michigan.

The plaintiffs in these cases are voters represented by advocacy groups like Citizens for Responsibility and Ethics in Washington and Free Speech for People. They seek rulings under state law — which governs state elections — declaring Trump ineligible to run for president based on Section 3 of the 14th Amendment. That section reads: “No person shall be a Senator or Representative in Congress, or elector of 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 any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

The Colorado Supreme Court on Wednesday will become the second state high court to consider whether the 14th Amendment bars Trump from appearing on the ballot in that state’s presidential primary. A Colorado trial judge ruled last month that Trump engaged in insurrection but that Section 3 does not apply to people running for president or those who previously held the presidency.

The Minnesota Supreme Court dismissed an effort to block Trump from that state’s primary ballot on November 8, saying that state law allows party committees to put their chosen candidate on the primary ballot. But the high court made clear its decision did not apply to the general election ballot. That means the plaintiffs can bring a new petition after the primary. Minnesota law gives the state supreme court original jurisdiction over attempts to remove any candidate from a ballot in the state.

A lower court in Michigan also declined to remove Trump from the Republican primary ballot in that state last month, saying that whether the 14th Amendment ultimately disqualifies Trump from office is a “nonjusticiable political question that is left to Congress to decide.” That decision is being appealed.

In the Colorado case, the plaintiffs argue that Trump engaged in insurrection by inciting a mob to attack the Capitol. They point to language used in a speech at a rally near the Capitol on January 6 as evidence that he intended to obstruct Congress’s certification of the 2020 vote for President Biden and thus cling to power. This should be enough to disqualify him from being president, they say, because the 14th Amendment’s phrases “no person shall . . . hold any office” and “previously taken an oath . . . as an officer of the United States” both include the presidency. In support of that argument, they point out that the U.S. Constitution refers to the presidency as an “office” throughout, and that, historically, the president was understood to be an “officer of the United States.” They contend that the lower court’s interpretation of the ban as excluding the nation’s highest office would yield absurd results.

Trump’s lawyers say that evidence shows he did not incite an insurrection and that his speech was protected by the First Amendment. They argue that Trump spoke against violence at the rally and that the subsequent events at the Capitol did not amount to an insurrection. They also contend that the plain language of the 14th Amendment and its legislative history prove the drafters did not intend the ban on holding office to include the presidency. Nor did the drafters intend for the clause to apply to people who previously held the presidency, they say.

The trial judge in Colorado ruled after a five-day trial that “Trump engaged in an insurrection on January 6, 2021, through incitement, and that the First Amendment does not protect Trump’s speech” at a rally that day. She added that he “acted with the specific intent to incite political violence and direct it at the Capitol” and that he intended to “disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means.”

However, the judge said, Section 3 does not apply to the country’s highest office. Because the section “explicitly lists all federal elected positions except the president and vice president” as unavailable to insurrectionists, “traditional rules of statutory construction” dictate that the presidency is not a disqualified office. Moreover, she said, Section 3 applies only to those who have “previously taken an oath” to “support” the Constitution — as president, Trump’s oath was to “preserve, protect and defend” it.

Colorado law allows parties in certain election-related disputes to appeal directly to the state’s supreme court, bypassing the state appellate courts. The high court agreed to hear this appeal on an expedited timetable because of the nature of the case. It is expected to rule quickly, because state primary ballots must be certified by January 5, 2024.

Either side can appeal these state cases to the U.S. Supreme Court, which has jurisdiction to review state high court rulings that involve federal law. Free Speech for People, which represents plaintiffs in the Minnesota case — the only one in which a state supreme court has reached a final decision so far — has not yet indicated whether it plans to ask the U.S. Supreme Court to review the case. Political parties in Minnesota have until January 2, 2024, to submit their list of primary candidates.

Similar cases are also moving forward in federal court. A little-known presidential candidate from Texas, John Anthony Castro, has filed more than two dozen federal lawsuits pro se across the country challenging Trump’s eligibility to run. Thus far, no court has ruled in his favor. For example, a federal judge in New Hampshire dismissed one of these suits in October, ruling that Castro had not established he will suffer a “competitive political injury” from Trump’s election participation and, therefore, lacked standing to bring his claim. The ruling was affirmed by the U.S. Court of Appeals for the First Circuit.

Notably, a recent suit to disqualify an insurrectionist from non-presidential office was successful. A state trial court in New Mexico ruled in September 2022 that the 14th Amendment barred Otero County Commissioner Couy Griffin from holding office. Griffin had previously been found guilty in a federal criminal trial of entering restricted grounds at the Capitol on January 6. The New Mexico Supreme Court dismissed his appeal earlier this year. 

Rex Bossert, former editor in chief of the National Law Journal, is a freelance writer.