Why Have States Diverged on 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 has agreed to review a Colorado Supreme Court ruling that the Disqualification Clause of the 14th Amendment bars former President Donald Trump from appearing on the state’s Republican primary ballot because of his role in the January 6, 2021, attack on the Capitol.

But Colorado isn’t the only state to have reached a decision on whether Trump is eligible for the ballot — and state supreme courts and secretaries of state are diverging on the question. Two weeks ago, the Michigan Supreme Court came to the opposite conclusion, as did the Minnesota high court in November. Also in recent weeks, California’s secretary of state kept Trump on the ballot while Maine’s announced that Trump was ineligible to appear. Related cases are pending in state and federal courts across the country.

These disparate results can be explained in part by differences in state election laws and state procedures for claims like these.

Section 3 of the 14th Amendment bars anyone from holding public office if they have sworn an oath to uphold the Constitution and subsequently “engaged in rebellion or insurrection” or “given aid or comfort to enemies” who did so.

In Anderson v. Griswold, the Colorado Supreme Court ruled 4–3 that Trump was disqualified under this provision because, it concluded, he had sworn to “preserve, protect and defend the Constitution of the United States” at his inauguration and then engaged in an insurrection on January 6, 2021. Meeting these conditions, the court held, barred him from serving as an elected official and from being on the primary ballot for president. The court also ruled that the voters who filed the lawsuit had properly used the relevant state election statute to bring the case. The court held that “it would be a wrongful act under the Election Code for the Secretary [of State] to list [Trump] as a candidate on the presidential primary ballot.”

The decision partially affirmed a 102-page ruling by a Denver trial court, which had held a five-day trial to determine whether Trump was qualified to be on the Colorado primary ballot. The trial court judge had determined that Trump had engaged in an insurrection, but that he could remain on the ballot because the Disqualification Clause did not apply to the presidency. (The 14th Amendment states that “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” if the conditions mentioned above are met.)

The Colorado Supreme Court accepted the trial court’s factual findings and then went the extra step of ruling that the Disqualification Clause does apply to presidents and the presidency. Moreover, the Colorado Supreme Court concluded, “the clear purpose of Section Three [was] to ensure that disloyal officers could never again play a role in governing the country. . . . The drafters of Section Three were motivated by a sense of betrayal; that is, by the existence of a broken oath, not by the type of officer who broke it.” The U.S. Supreme Court has agreed to review the Colorado decision; oral argument is set for February 8, 2024.

In contrast to Colorado, where the process started with a trial, in Minnesota, the proceedings to remove Trump from the ballot started in the state’s supreme court, which held an oral argument on November 2. In Growe v. Simon, the Minnesota high court decided 6–0 that Trump could stay on the Republican primary ballot in Minnesota. The court held that “although the Secretary of State and other election officials administer the mechanics of the election, this is an internal party election to serve internal party purposes, and winning the presidential nomination primary does not place the person on the general election ballot.” The court added, “[t]here is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot, or sending delegates to the national convention supporting, a candidate who is ineligible to hold office.”

In short, the Minnesota court found that the choice of who could be on the Republican primary ballot was a matter for the Republican Party to decide, not something to be adjudicated by a court. The case was dismissed without a hearing on the factual evidence about January 6 or Trump’s role.

Thus, the Minnesota Supreme Court never reached the merits of the questions of whether the Disqualification Clause applied to Trump, whether he engaged in an insurrection, or whether he was disqualified from being on the ballot. The court also left the door open for the plaintiffs, who include a former Minnesota secretary of state, to revisit the issue of removing Trump from the state’s general election ballot if he is eventually nominated.

Then, in the last few days of 2023, Michigan’s Supreme Court decided to follow the approach of the Minnesota Supreme Court and allowed Trump to be on the Michigan GOP primary ballot. The court simply said that it was “not persuaded that the questions presented should be reviewed by this court,” without elaborating.

These state supreme court decisions turn in part on the interpretation of state election laws governing federal elections — a power held by state courts, as the U.S. Supreme Court recently reaffirmed in Moore v. Harper. In Minnesota, the high court found that a presidential primary is not an “election” that would allow the court to render an opinion about candidate qualifications. Rather, the state has delegated considerable power to the political parties to act as appropriate gatekeepers. Although the majority decision in Michigan was sparse, a dissenting opinion noted that there was “no provision in the Michigan election law that requires someone seeking the office of president of the United States to attest to their legal qualification to hold the office.”

By contrast, the Colorado law has an expedited procedure for preventing the secretary of state from causing an error on the ballot. Here the “error” would be the placement of a constitutionally disqualified candidate such as Trump on the primary ballot. The Colorado plaintiffs are Republican and unaffiliated voters who would all have the ability to vote in Colorado’s Republican 2024 primary. And importantly, the statute they filed under gave the plaintiffs a cause of action that allowed them into court. The state supreme court ruled that the plaintiffs used the correct Colorado election law procedures to challenge Trump’s eligibility to be on the ballot.

The Colorado plaintiffs are represented by Citizens for Responsibility and Ethics in Washington, also known as CREW. This organization has some experience with litigating Disqualification Clause issues — it won a similar case in 2022 in New Mexico that resulted in the removal of a January 6 participant, Couy Griffin, from his office as county commissioner.

Trump has been declared ineligible for the ballot in one other state: Maine. There, however, the decision was made by Maine Secretary of State Shenna Bellows, not the state supreme court. That’s because Maine law vests in the secretary of state the authority to declare candidates ineligible for the ballot and sets a special procedure for challenges to a candidate’s qualifications. The law requires voters to petition the secretary of state directly. The secretary then sets a public hearing to consider the matter.

The hearing about Trump’s eligibility took place in December after Bellows received two challenges to Trump’s nomination from voters who argued he was barred from holding office because of his actions related to the January 6 attack.

Bellows followed the Colorado approach in making her decision, declaring that “the weight of the evidence makes clear that [Trump] was aware of the likelihood for violence and at least initially supported its use give he both encouraged it with incendiary rhetoric and took no timely action to stop it.” The “clear command” of Section 3, she said, is that “those who orchestrate violence against our government may not wield the levers of its power.” Accordingly, she ruled, Section 3 rendered Trump ineligible to appear on the Maine primary ballot.

Like the other decisions, the Maine decision turned on the structure of state law. Under Maine’s election law, candidates must submit a written statement explaining why they meet the qualifications of the office they seek. If the secretary finds that any part of a statement is false, she must disqualify the candidate. Here, she found that Trump’s statement contained falsehoods. “As a general matter,” she explained, “states have inherent authority over their ballots,” and “the inevitable result of states managing their own elections is that each has different requirements and procedures for ballot access, even with respect to presidential candidates.”

Bellows added her acknowledgment of the solemnity and import of her decision: “I am mindful that no secretary of state has ever deprived a presidential candidate of ballot access based on Section Three of the Fourteenth Amendment,” she wrote. “I am also mindful, however, that no presidential candidate has ever before engaged in insurrection.” Trump has asked a Maine state court to overturn the decision.

Now that the U.S. Supreme Court has taken the Colorado case, it could clarify how the Disqualification Clause works in the post-January 6 world and whether federalism, which allows for variety in how elections are run state by states, should yield to uniformity that requires a one-size-fits-all rule across all 50 states. The stakes are high. Among the many possible outcomes, the U.S. Supreme Court could say Trump is disqualified everywhere, not just in Colorado and Maine.

Ciara Torres-Spelliscy is a professor of law at Stetson University College of Law and a Brennan Center fellow.