Unpacking the Legal Challenges to Trump’s Ballot Eligibility

UPDATE: On March 4, 2024, the U.S. Supreme Court overturned the Colorado Supreme Court’s decision excluding Donald Trump from the ballot in that state, holding that only Congress may disqualify candidates for federal office under Section 3 of the Fourteenth Amendment.

The U.S. Supreme Court will hear oral arguments Thursday in an appeal of the Colorado Supreme Court’s decision barring Donald Trump from the state’s primary ballot.

But the lawsuit, Anderson v. Griswold, is far from the only effort to remove Trump from a state’s ballot. To date, there have been at least 50 such actions before courts or election officials filed across 35 states. All argue that Trump’s actions relating to the January 6 attack on the U.S. Capitol amount to insurrection sufficient to disqualify him from holding the presidency under the 14th Amendment. Section 3 bars from certain public offices anyone who previously swore 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” and later “engaged in rebellion or insurrection” or gave “aid or comfort to enemies.”

But the cases differ in many other respects that have nothing to do with whether the U.S. Constitution bars Trump from holding the presidency — and those differences have impacted their outcomes. Importantly, the cases have been brought by different plaintiffs, with almost 30 filed by John Anthony Castro, a little-known Republican presidential candidate who is currently under federal indictment. And, perhaps most crucially, the actions revolve around various intricacies of state law. As a result, the vast majority of these challenges have been resolved without any consideration of Trump’s ballot eligibility. Instead, they’ve turned on questions like whether a plaintiff has standing or whether election officials have authority under state law to remove a candidate from the ballot.

Indeed, there have been rulings on the merits of the Section 3 argument in just two challenges. In Anderson, the Colorado Supreme Court ruled 4–3 in December that Trump was disqualified from the presidency because he had sworn to “preserve, protect and defend the Constitution of the United States” at his 2017 inauguration and subsequently engaged in an insurrection on January 6, 2021. A few days later, the Maine secretary of state reached the same conclusion. Trump’s appeal of that decision in state court has been stayed pending the U.S. Supreme Court’s decision in Anderson.

This article explains how the various efforts to remove Trump from the ballot differ, why those differences matter, and where each challenge currently stands.

State law has shaped outcomes

In both Colorado and Maine, state law provides a path for voters stop a secretary of state’s inclusion of an ineligible candidate on a primary ballot. The Colorado Supreme Court held that it would violate state election law for the secretary to place an unqualified candidate on the presidential primary ballot. Maine election law, meanwhile, vests authority in the secretary of state to determine if a candidate meets all statutory and constitutional requirements for inclusion on the ballot, and it likewise requires barring a candidate who does not. As a result, decisionmakers in those states were able to reach the underlying question about whether Trump was eligible for the presidency under Section 3.

As for the nearly two dozen cases that have come out in Trump’s favor, almost all have been dismissed either because of state election procedures or because a court held the plaintiff lacked standing (more on standing below). State law bases for dismissal have included the process by which an individual gets on the primary ballot, the extent of a secretary of state’s power over ballots, and the jurisdiction of state election commissions.

For example, Minnesota’s high court and a Michigan appellate court dismissed voter suits because state law allows political parties to nominate whomever they please — parties may even select someone who is ineligible to hold the office for which they are nominated. These courts made clear their opinions applied only to the primaries, and that the plaintiffs could refile their lawsuits during the general election. (The Michigan Supreme Court declined to review the appellate court’s decision.)

Other rulings have focused on whether state law authorizes a secretary of state to remove ineligible candidates from the ballot. In such cases, voters have generally brought actions in mandamus, a mechanism through which plaintiffs can request a court order that a government official perform their public duties. But, if barring ineligible candidates from the ballot is not part of a secretary’s duties, then such an action will fail. For example, a case brought by voters in Washington state was dismissed because, the court said, the secretary has no discretion over the names placed on the ballot. Trump also relied on state law limiting the secretary of state’s duties in a suit he filed seeking a declaration that Michigan’s secretary has no authority to decide whether he will be placed on the primary ballot; the court agreed.

At least one case — filed in Wyoming state court — was dismissed because the court found the claims were not yet ripe. Ripeness is a legal concept that prevents courts from issuing advisory opinions or basing their decisions on undetermined facts. The Wyoming court declined to consider a lawsuit by voters because the ballots were not yet being prepared in that state.

Election officials have considered eligibility complaints directly

In several states, election law requires that voters file eligibility complaints with an election commission or the secretary of state in the first instance, rather than with a court. In these states, the losing party may file a suit in state court seeking to overturn the administrative decision, as Trump has done following the Maine secretary of state’s decision against him.

Meanwhile, every state election commission to allow Trump to stay on the ballot — including in Illinois, Massachusetts, North Carolina, and Wisconsin — has done so because it has held that state law does not give it authority or jurisdiction to consider whether a candidate is eligible for the presidency. In Massachusetts, a state supreme court justice agreed, and the plaintiffs have appealed that decision to the full high court. Appeals to state court by voters are pending in other states, including in North Carolina and Wisconsin.

Finally, although the California secretary of state made headlines for her refusal to remove Trump from that state’s ballot, no formal process had ever been initiated to petition her to do so. Rather, the lieutenant governor implored her, in a letter, to “explore every legal option to remove former President Donald Trump from California’s 2024 presidential primary ballot.” But the letter did not assert that the secretary had the authority under state election law to do what it asked. Similarly, the New York elections board relied on state ballot access rules to grant Trump a spot on that state’s primary ballot despite receiving letters from lawmakers urging it to declare him ineligible.

Cases have been dismissed or stayed pending Anderson

Some cases have been dismissed in light of the U.S. Supreme Court’s pending review of Anderson, the Colorado challenge to Trump’s eligibility. For example, the Oregon Supreme Court dismissed a lawsuit, explaining that “a decision by the United States Supreme Court regarding the Fourteenth Amendment issue may resolve one or more” of the issues presented. It made clear that the plaintiffs could file a new action if any issues remain after Anderson. Similarly, in Maine, the trial court reviewing the secretary of state’s decision to bar Trump from the ballot granted Trump’s motion to stay proceedings in light of Anderson.

Plaintiffs matter

Because of a legal concept called standing, a lawsuit’s fate can turn on who is bringing it. In federal court, standing refers to the principle that a lawsuit may move forward only if the person or entity suing can show they’ve been specifically harmed by the defendant’s actions in a way that can be remedied by a court. Standing in state courts, meanwhile, is based on state law.

The cases that have gotten the most attention — including the Colorado case currently before the Supreme Court — have been brought by voters in state court. But a majority of cases challenging Trump’s inclusion on the ballot — almost 30 — have been filed in federal court by Republican presidential candidate Castro from Texas. Castro argues that, as someone vying for the Republican nomination, he is injured by the presence of a candidate on the ballot who is ineligible to hold office because that candidate will garner votes that otherwise would have gone to Castro. Castro, who works as a tax preparer, was arrested last month on 33 felony counts of preparing and filing fraudulent tax returns on behalf of clients.

Every court to have issued a decision in one of Castro’s cases has held that he lacks standing to bring a 14th Amendment challenge to Trump’s candidacy. These include federal cases in Alaska, Arizona, Florida, Nevada, New Mexico, Rhode Island, West Virginia, and two separate cases in New Hampshire. These courts have explained that Castro has not shown “a ‘plausible’ chance of being competitively affected” by Trump’s inclusion on the 2024 Republican primary ballot in any of these states. In a case challenging Trump’s inclusion on the New Hampshire ballot, for example, a federal district court pointed out that Castro himself “agreed that he [would] not win a single delegate, even if the court enjoins the secretary of state from counting votes for Trump.” The U.S. Court of Appeals for the First Circuit went further, suggesting that Castro had declared his candidacy for the sole purpose of challenging Trump’s ballot eligibility — in other words, he could not have competitor standing because he was not actually seeking the presidency. Castro has appealed some of these decisions, including in the Arizona, New Mexico, and West Virginia cases. The Florida case reached the U.S. Supreme Court, which on October 2, 2023, declined to review it.

With respect to actions brought by voters, conclusions about standing have varied depending on whether they’ve brought suit in state or federal court. Every action by voters to disqualify Trump filed in federal court has been dismissed for lack of standing, including in Virginia, California, and Florida. A voter may not sue, one court explained, to “demand that his 2024 ballot contain only candidates eligible to serve if elected.” This is because such a plaintiff is “seeking relief that no more directly and tangibly benefits him than the public at large.”

Standing to challenge Trump’s ballot eligibility in state court, meanwhile, is an entirely different story. That’s because, like so much about these cases, standing depends on state election law. In the states where voters have attempted to have Trump barred from the ballot, state law confers broad standing in such cases. In some states, like Minnesota, standing rules allow “any individual” to file a petition to correct an error by an election official. Many, like Maine, specify that any registered voter may challenge the validity of a person’s primary candidacy — a very low hurdle compared to the federal standing requirement that a plaintiff show a specific harm.

Another factor that can impact a plaintiff’s success is whether they are represented by counsel. One study of self-represented litigants (known as pro se cases) in federal court found that plaintiffs without attorneys won only about 4 percent of the time, as compared to 50 percent when both parties were represented by counsel. This is because attorneys, who are familiar with the legal system, are better able than laypeople to present the legal issues clearly, avoid procedural pitfalls, build an effective factual record, and even meet deadlines. A federal judge dismissing a pro se challenge to Trump’s ballot eligibility in Virginia, for example, lamented that the plaintiffs “continuously flouted procedural requirements in their filings” and “were unable to file timely oppositions to defendants’ motions to dismiss.”

The plaintiffs in the Colorado case, meanwhile, are represented by Citizens for Responsibility and Ethics in Washington (CREW), a non-profit that works to preserve ethics, accountability, and openness in government. In 2022, CREW won a similar Section 3 challenge to the eligibility of January 6 participant Couy Griffin for a county commissioner office in New Mexico. In Michigan, Minnesota, Oregon, Massachusetts, and Illinois, voters challenging Trump’s eligibility to appear on the ballot are represented by the non-profit Free Speech for People. Other voters, like those challenging Trump’s eligibility for the ballot in Maine, are represented by regional law firms. However, a majority of the lawsuits filed, including all of the suits filed by Castro (who has a law degree but is not a practicing lawyer) and several suits filed by voters, including in Wyoming, North Carolina, Virginia, Virginia, and Florida, involve self-represented litigants.

Plaintiffs have voluntarily dismissed some cases

Several lawsuits have been voluntarily dismissed by the plaintiffs. Voluntary dismissal refers to a decision by the person or entity that originally brought the suit not to move forward. Castro has voluntarily dismissed at least 11 of his suits, including those in California, Connecticut, Delaware, Idaho, Kansas, Montana, New York, North Carolina, Oklahoma, Pennsylvania, and Utah. Some suits by unrepresented voters have also been dismissed voluntarily, including one in New Jersey state court and one in Louisiana state court. All these cases were dismissed before the court issued a ruling.

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For now, it appears likely that remaining cases will be in a holding pattern pending the U.S. Supreme Court’s decision in Anderson. Should the Court definitively hold that Trump is eligible for the presidency under Section 3, then the remaining cases will likewise be resolved. However, other possible outcomes from the Court — including procedural rulings that don’t reach the ultimate merits, or a ruling that Trump is presently ineligible for the presidency — could leave courts with unresolved questions about ballot eligibility that will require further action.

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and a senior counsel at the Brennan Center for Justice.

Suggested Citation: Kathrina Szymborski Wolfkot, Unpacking the Legal Challenges to Trump’s Ballot Eligibility, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 6, 2024), https://statecourtreport.org/our-work/analysis-opinion/unpacking-legal-challenges-trumps-ballot-eligibility.