In our less than perfect democracy, who will choose the next president: state election officials, the courts or the people? Ironically, many of the same people who warn that if former President Donald Trump is reelected he will destroy our democracy as we know it, still pin their hopes on an obscure provision of the Constitution that would bar him from ballot access in the states.
Section 3 of the 14th Amendment to the Constitution, known as the “Disqualification Clause,” provides that anyone who has previously sworn to uphold the Constitution and who subsequently has engaged in “insurrection or rebellion” against the U.S., may not hold certain state or federal offices. The clause also provides that the Congress can remove that disability by a two-thirds vote of both chambers.
The 14th Amendment was adopted in the aftermath of the Civil War in 1868 as a Reconstruction era measure. The disqualification clause was only in full effect for a brief period as its enforcement was repealed for most Confederates and their sympathizers with enactment of the Amnesty Act of 1872.
Two issues swirling around the Trump candidacy are: (1) whether the disqualification from holding office must be based on a conviction for engaging in insurrection; and, (2) whether the clause even applies to the presidency since it does not specifically mention that office.
According to a Sept. 2022 Congressional Research Service “Legal Sidebar,” section 3 does not expressly require a criminal conviction, and, historically, Reconstruction era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy.
Interestingly, Justice Department special counsel Jack Smith did not include the insurrection statute in his indictment of Trump, though the House impeachment resolution in January 2021 did, as did the Dec. 2022, House Select committee report on the Jan. 6 attack on the Capitol.
So far, only Colorado, by a state Supreme Court decision, and Maine, by the secretary of state’s ruling, have declared that Trump is not eligible to appear on their presidential primary ballots. Other states, like Minnesota and Michigan, have ruled the other way, while 14 other states are still thrashing it out in the courts. On Jan. 3, Trump appealed the Colorado decision directly to the Supreme Court. With the primary season just around the corner, pressure on the court is running high to decide the issue expeditiously.
The other issue still under some debate is whether the disqualification clause even applies to presidential candidates. The clause mentions seven categories of offices to which it applies, from members of Congress and presidential electors to civil and military offices at the federal and state levels. But there is no specific reference to the president.
The CRS sidebar concludes the presidency is covered since the president is an officer of the U.S., along with the vice president, as mentioned in the impeachment clause. The framers of section 3 would be astounded, for instance, if someone suggested that Jefferson Davis, the president of the Confederacy, would be eligible to run for U.S. president due to some inadvertent loophole in the clause. In fact, one senator did ask during debate on the clause why ex-Confederates were not barred from the presidency, to which a colleague pointed out that the language applies to any office of the U.S., civil or military.
The big question remains, where is all this going? How will the Supreme Court rule? If the conservative majority rules, as it did in its Dobbs v. Jackson Women’s Health Organizationabortion decision, that it is a matter for each state to determine by its laws and rulings, we will be faced with a crazy-quilt, mishmash of results that will drive those TV election night state-by-state map-trackers bonkers (how many colors are in your Crayola box?). Moreover, it will leave the average voter confused and angry. This is indeed a national question demanding uniform rules of application.
The prospect of state election officials and the courts barring a presidential candidate from appearing on a ballot anywhere based on insurrection charges certainly plays into the hands of former President Trump’s “woe is me,” persecution narrative that the “deep state” is out to do him in by dealing him out. Each time he suffers a legal setback, it seems, his popular support only grows. This scenario lays a trap favoring Trump that he didn’t have to invent.
The best thing the Supreme Court can do is to embrace the democratically accepted understanding that in our system the people get to choose their president, and rule that the “disqualification clause” is a relic of a bygone era, irrelevant to the current situation.
Don Wolfensberger is 28-year staff veteran of the House of Representatives culminating as minority staff director of the House Rules Committee (1989-94) and chief-of-staff of the full committee (1995-97). He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000); and,“ Changing Cultures in Congress: From Fair Play to Power Plays” (2018). The views expressed are solely his own.