Scholars address lawsuits seeking to bar Trump from 2024 ballot

Listen to this article

As America inches closer to the 2024 presidential election, questions abound about whether Donald Trump will be on every state’s ballot if he is the Republican nominee.

Minnesota is one of two states where courts this week are considering this question. The other is Colorado.

On Monday, legal scholars gathered at the University of Minnesota to discuss these cases and speculate about the likelihood that Trump will appear on the ballot.

On the same day that those scholars gathered in Minneapolis, lawyers in Colorado commenced a trial that is supposed to last just one week, with the judge aiming to issue a decision by Thanksgiving.

The question is whether a post-Civil War provision of the U.S. Constitution might bar Trump from running for president again. This provision — Section 3 of the 14th Amendment to the U.S. Constitution — bars people who have engaged in “insurrection or rebellion” from holding federal office. The Colorado lawsuit argues that Trump disqualified himself through his actions, even though he was not criminally convicted.

On Thursday, the Minnesota Supreme Court will hold oral arguments concerning another challenge. Free Speech For People, the group bringing the Minnesota lawsuit, is asking the court to direct the Minnesota Secretary of State to block Trump from the primary.

Both of these cases are receiving attention because of their potential outcomes as well as the fact that these cases get to the merits of the argument, unlike so many other similar cases brought.

“Most of these cases [in federal court] are going to go nowhere, and they are already getting thrown out in federal court,” said Derek Muller, professor of Law at the University of Notre Dame Law School. “When you’re filing in federal court, you have to have Article 3 standing, checking a lot of boxes to show that you have an injury that a court can redress. When you are a voter going into court saying that, ‘This candidate is not qualified to serve, keep him off the ballot’ — known as a ‘generalized grievance,’ you have an injury just like everybody else and the Supreme Court says that, ‘Unless you have something particularized to you, we’re not going to get involved.’” This is in contrast to state courts, where electors might be invited to challenge the qualifications. Colorado and Minnesota have mechanisms in place to allow voters to bring these suits.

Getting to the merits, the big question before the courts is whether Trump engaged in insurrection. This, said Andrea Katz, professor at Washington University in St. Louis School of Law, depended on which source of law one used to define ‘insurrection.” Common law, federal statute, and what three branches of government have said on this, have different requirements. Under federal statute, there is a higher standard to show insurrection. This is why, Katz explains, of the over 1,000 people charged for their roles on Jan. 6, 2021, none of them have been charged with insurrection. Still, Katz maintains that this does not mean that Section 3 is inapplicable here.

“For those who say that Section 3 doesn’t apply to Trump simply because federal criminal law establishes a higher bar, there are a couple of points to be made on the other side,” averred Katz. “One of the most important ones is that the history of the 14th Amendment suggests that its drafters did not see it as punishment but rather a requirement of office. You don’t need to prove the elements of the criminal act or beyond the reasonable standard of a doubt either.”

“The mere fact that prosecutors did not charge President Trump with insurrection because of the high evidentiary bar to proving intent does not necessarily mean that, for the purposes of the 14th Amendment, what we saw was not an insurrection, what we saw the president do, including in the events leading up to January 6 … it does not necessarily mean from a civil standard that this does not rise to the level of engaging in insurrection,” added Katz.

One question raised was whether these lawsuits could have blowback potential and support for Donald Trump and likeminded politicians. “Section 3 has not been used for a very long time, for very good reasons,” said Eric Segall, professor at Georgia State College of Law. “I think the potential for polarization is just too high.”

“I am extraordinarily afraid of using Section 3 to disqualify Trump,” Segall continued. “If Trump is disqualified or even if he is in some states and not other states, and it becomes a really big deal, you can bet that Republicans are going to go after Democrats.”

“When these issues about Trump’s role in the 2020 election and election lies come front and center, it has almost always has been, in recent years, bad for the Republican Party,” said Ilya Somin, professor at Antonin Scalia Law School, citing a number of races in the 2022 election. “The more focus there is on this issue, the worse it is for Trump,” Somin added.

Some people will not be swayed by these lawsuits, no matter the outcome. “The kind of people who are likely to react negatively to Section 3 disqualification or to Trump’s criminal prosecutions are the kind of people who, in a general election, are highly likely to vote for Trump anyway,” Somin declared.

The panelists also debated whether using Section 3 was a slippery slope.

Somin viewed not disqualifying Trump as setting a dangerous precedent for those who have lost elections to stay in power. “Someone might do the same sort of thing, and somebody might be more competent at it than Trump was,” Somin said. “A future politician trying to do something about it could be craftier about it.”

“The slippery slope is in … the direction of pushing out the boundaries of what kind of anti-democratic behavior is allowable or is seen within the informal boundaries of norms,” agreed Julia Azari, professor of Political Science at Marquette University.

“This is a tool that should come out at Civil War or when we are on the brink,” disagreed Segall. “It should not be something used to disqualify the choice of 70 million Americans who don’t agree that there was insurrection.”