*Tyler Hueffmeier
I. Introduction
Donald Trump’s 2024 presidential run may be unconstitutional. Section Three of the Fourteenth Amendment states that no “elector of President and Vice President . . . shall have engaged in insurrection or rebellion against” the United States.[1] Trump’s actions on January 6, 2021, specifically his efforts to refuse to count electoral votes via the vice president and through fomenting and inciting a mob, arguably fulfill this criterion.[2]
Given this, the question is how exactly and who exactly determines whether Trump’s 2024 campaign is unconstitutional based on Section Three. The answer is any state election official. No action is necessary to “activate” Section Three.[3] It is simply a condition that must be met for one to become President. Because the Fourteenth Amendment is self-enforcing, state electoral officials already have the authority to simply remove Donald Trump from the ballot.[4] This would be a procedural, as opposed to a punitive, measure, similar to what would occur if Donald Trump was, for example, under the age of 35, which similarly disqualifies him from the office.[5]
II. Litigation
Although the Fourteenth Amendment is self-enforcing, the controversy has already spawned litigation. Plaintiffs hoping to remove trump from the ballot brought suit in Michigan, Minnesota, Florida, New Hampshire, and Arizona.[6] In Michigan, the trial court refused to take Trump off the ballot, finding this a question more appropriate for Congress.[7] In Minnesota, the court refused to take Trump off the primary ballot.[8] They argued that this case is ripe, as Section Three only bars someone from becoming President, not from becoming the primary candidate of a political party.[9] In Florida, the court found that the plaintiff, a private citizen, did not have standing “as the injuries alleged were not cognizable and not particular to them.”[10] In New Hampshire, the court found that Republican presidential candidate John Anthony Castro also lacks standing.[11] Castro argued that he would lose out on potential funding for his campaign if Trump was allowed to run, but the court found no “political competitive injury arising from Trump’s participation in the New Hampshire Republican presidential primary.”[12] Castro has filed suit in a large number of other states as well, but those cases have yet to gain traction.[13]
Trump has been removed from the primary ballot in Colorado,[14] Maine,[15] and most likely more states to come based on Section Three of the Fourteenth Amendment.
This litigation could potentially result in the legitimate removal of Trump from the ballot in all fifty states. New Mexico residents have already used Section Three to disqualify County Commissioner Couy Griffin for his participation in January 6th.[16] The court found that Griffin engaged in insurrection or rebellion against the United States because he “appeared at a Stop the Steal rally in Albuquerque along with the New Mexico Civil Guard” and “was a featured speaker on a multi-city bus tour to Washington DC.”[17] On this tour, his goal “was to rally and inflame crowds and recruit them to come to Washington DC” on January 6th.[18] If a court finds Trump was as involved as Griffin in the January 6th attack on the Capitol, it could very well disqualify him from holding office. However, of the nine politicians that were accused in court of violating Section Three due to their involvement with January 6th, courts have only chosen to bar Griffin from office.[19]
Another possibility is that, much like Representative Greene, Trump’s actions will be too far removed from the incident for him to be disqualified. Representative Greene is the representative for Georgia’s 14th district in the House of Representatives. During the January 6th attack, Representative Greene posted a video on social media showing support for the participants.[20] The court found this evidence insufficient to establish that Representative Greene violated the Fourteenth Amendment.[21] The question becomes whether Trump’s actions are more akin to Griffin’s active recruiting or closer to Representative Greene’s passive support.
This question is moot if the courts decide that Section Three does not apply to the President at all.[22] The text of the amendment simply refers to the “elector of the President and the Vice President[.]”[23] Once could read this as referring merely to the electoral college as opposed to the president or presidential candidates themself.
The courts could also choose to uphold the Griffin decision from 1869.[24] Chief Justice Salmon Chase wrote this opinion, though not in his capacity as Chief Justice. He was filling in for a circuit court justice at the time. In this opinion, Justice Salmon Chase claimed that any action under Section Three had to be authorized by direct legislation from Congress.[25] He based this claim on Section Five of the Fourteenth Amendment, which states “Congress shall have the power to enforce, by appropriate legislation, the provision of this article.”[26] Recently, an Arizona Superior Court cited Griffin as its basis for dismissing Section Three claims against three politicians who supported the events of January 6th.[27] Griffin has been vigorously challenged by legal scholars such as William Baude and Micheal Stokes Paulsen in their article “The Sweep and Force of Section Three.”[28] They argue that the plain reading of the Amendment suggests that it is self-executing.[29] Baude and Paulsen go on to argue that the Griffin decision focuses too much on what the drafters of the Amendment intended as opposed to focusing on the text of the Amendment itself.[30] However, Griffin remains good law, so there is doubt on whether Section Three is truly self-executing.
The courts could also keep Trump on the ballot by re-interpreting the 1872 Amnesty Act. The Amnesty Act listed the “‘political disabilities imposed by’ Section Three of the Fourteenth Amendment ‘from all persons whomsoever[.]’”[31] A North Carolina District Court ruled that the Amnesty Act gave Senator Cawthorn blanket protection from Section Three.[32] Like Representative Greene, Senator Cawthorn supported the events of January 6th live over social media. Senator Cawthron also spoke at the January 6th rally at the Capitol. The Fourth Circuit overturned the decision giving Senator Cawthorn blanket immunity based on the 1872 Amnesty Act.[33] The Fourth Circuit claimed that the Act did not apply to any crimes committed after its enactment.[34] If the Supreme Court hears this case, it could overturn the Fourth Circuit’s decision, effectively defanging Section Three.
IV. Conclusion
The ultimate fate of Trump in regards to Section Three of the Fourteenth Amendment is unclear. What is clear however is that the scope of Section Three of the Fourteenth Amendment remains undefined. Some theories, such as the 1872 Amnesty Act approach, would strip Section Three of its power entirely. Others, such as the 1869 Griffin case approach, would severely limit its power. Others, such as the 2022 Griffin case, threaten to give the section enormous power, turning it into a political tool to remove candidates before the race even starts. The cases arising over the next few years will decide what Section Three ultimately becomes.
*Tyler Hueffmeier is a second-year evening student at the University Baltimore School of Law. Tyler received a Bachelor’s in Electronic Media and Film from Towson University. Before law school, he used this degree to work as a Social Media Intern at Jones Robb PLLC. Tyler is currently a Staff Editor for the University of Baltimore Law Review.
[1] U.S. Const. amend. XIV, § 3.
[2] William Baude & Micheal Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev.1, 4–5 (forthcoming 2023–24).
[3] Id. at 23.
[4] Id.
[5] Id. at 17–18.
[6] Thomas Kika, Full List of States Trying to Kick Trump Off Ballot and Where Cases Stand, Newsweek (Oct. 24, 2023, 12:56PM), https://www.newsweek.com/full-list-states-trying-kick-trump-off-ballot-where-cases-stand-1837398; Carolina Cummings, Minnesota Court Dismisses Bid to Block Trump on Primary Ballot; Leaves Door Open for General Election Challenge, CBS News Minn. (Nov. 8, 2023, 4:31 PM), https://www.cbsnews.com/minnesota/news/minnesota-supreme-court-issues-order-donald-trump-2024-ballot-case/; Order of Dismissal at 3, Caplan v. Trump, (S.D. Fla. 2023) (No. 0:23-cv-61628-RLR).
[7] Corey Williams and Nicholas Riccardi, Michigan Judge Says Trump Can Stay on Primary Ballot, Rejecting Challenge under Insurrection Clause, AP News (Nov. 8, 2023, 4:37 PM), https://apnews.com/article/trump-insurrection-14th-amendment-ballot-michigan-b2a870f98a60dffbe4c9566cfe97457c.
[8] Carolina Cummings, Minnesota Court Dismisses Bid to Block Trump on Primary Ballot; Leaves Door Open for General Election Challenge, CBS News Minn. (Nov. 8, 2023, 4:31 PM), https://www.cbsnews.com/minnesota/news/minnesota-supreme-court-issues-order-donald-trump-2024-ballot-case/.
[9] Id.
[10] Caplan v. Trump, No. 23-CV-61628, 2023 WL 6627515, at *2 (S.D. Fla. Aug. 31, 2023).
[11] KC Downey, Judge Dismisses Candidate’s Lawsuit to Keep Trump off New Hampshire Primary Ballot, WMUR (Oct. 30, 2023, 12:30 PM), https://www.wmur.com/article/new-hampshire-donald-trump-ballot-lawsuit-dismiss/45682757.
[12] Id.
[13] Kika, supra note 6.
[14] Anderson v. Griswold, 2023 WL 8770111, ¶ 257
[15] Marshal Cohen, Maine’s top election official removes Trump from 2024 primary ballot, CNN Pᴏʟɪᴛɪᴄs (Dec. 29, 2023, 10:49 AM), https://www.cnn.com/2023/12/28/politics/trump-maine-14th-amendment-ballot/index.html
[16] White v. Griffin, No. D-101-CV-2022-00473, 2022 WL 429519, at *46 (D.N.M. Sep. 6, 2022).
[17] Id. at 5.
[18] Id. at 6.
[19] Id.; Hansen v. Finchmen, No. CV-22-0099-AP/EL, 2022 WL 1468157, at *1 (Ariz. May 9, 2022); Rowan v. Greene, No. 2222582-OSAH-SECSTATE-CE-57, (Ga. Off. of State Admin. Hearings May 6, 2022), https://sos.ga.gov/sites/default/files/2022-05/Greene-final-decision.pdf; Cawthorn v. Amalfi, 35 F.4th 245 (4th Cir. 2022); Stencil v. Johnson, 605 F. Supp. 3d 1109, 1123 (E.D. Wis. 2022).
[20] Greene, 2022 No. 2222582, at 10–11.
[21] Id. at 19.
[22] Nicholas Riccardi, Liberal Groups Seek to Use the Constitution’s Insurrection Clause to Block Trump From 2024 Ballots, AP News (Aug. 31, 2023, 10:51 AM), https://apnews.com/article/trump-14th-amendment-insurrection-2024-election-ballot-9c5f79203109ba221b35a48e708ad725.
[23] U.S. Const. amend. XIV, § 3.
[24] In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869).
[25] Id. at 26
[26] Id.; see U.S. Const. amend. XIV, § 3, § 5; see also Hansen v. Finchem, 2022 CV 2022-004321, at *6 (Ariz. Sup. Ct. April 22, 2022).
[27] Finchem, 2022 CV 2022-004321, at *6.
[28] Baude & Paulsen, supra note 2, at 37.
[29] Id. at 39.
[30] Id. at 40–42.
[31] Cawthorn v. Amalfi, 35 F.4th 245, 248 (4th Cir. 2022) (citing Amnesty Act of 1872, 17 Stat. 142, ch. 193 (1872)).
[32] Id. at 250.
[33] Id. at 260–61.
[34] Id.
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