WASHINGTON − The idea landed in legal and political circles with a big splash during the summer: Donald Trump had already lost his chance to run for another term because of his effort to overturn the 2020 election.
But in recent weeks, the theory that a little-tested, post-Civil War system 14th Amendment provision disqualifies The former president’s attempt to once again try his hand at the White House has suffered a series of setbacks, with courts in four states rejecting the idea – at least as it relates to next year’s primary elections.
THE the latest decision came Friday from a Colorado court, which ruled that this provision does not cover presidents. Minnesota Supreme CourtLast week, it was ruled that the primary election was an “internal party” matter. A Michigan court said Tuesday state election officials have no authority to resolve the issuenot. A New Hampshire federal court last month launched a long-term bid from a little-known Republican candidatee who raised the same question.
Is the fight over Trump and the 14th Amendment over?
So, is the fight over the 14th Amendment actually over? Unlikely, experts say.
To start, Critics of Trump focused heavily on other parts of Colorado District Judge Sarah Wallace’s ruling Friday night — particularly her conclusion that Trump committed in an insurrection by incitement and that his remarks at a rally outside the White House were not protected by the First Amendment.
“It is significant that the courts have thus far rejected efforts to block Trump from next year’s presidential vote,” said Michael Gerhardt, a professor at the University of North Carolina School of Law. in Chapel Hill. But, Gerhardt said, the basis for Wallace’s decision “is open to debate — and contrary to the best scholarship on the issue — and will undoubtedly become a basis for appeal in higher courts.”
Gerhardt, the author of a new book titled “Law of Presidential Impeachment,” said it “makes no constitutional sense” for the provision involved in this case to apply to all federal officials who support an insurrection , with the exception of the president.
“I don’t think the fight is over at all. I think everyone understands that only the Supreme Court can give us a definitive answer,” said Kermit Roosevelt, a professor at the University of California’s Carey School of Law. Pennsylvania.
From this perspective, Roosevelt said, the Colorado decision might be well-positioned for review by the Supreme Court because it poses a pure question of federal constitutional law: Does the provision apply to presidents?
“It’s very easy to imagine the Supreme Court hearing this case,” he said.
“Another nail in the coffin”
Trump’s re-election campaign certainly hopes that early defeats will doom the 14th Amendment efforts. Minutes after Colorado’s decision Friday evening, a campaign spokesperson described the decision as “another nail in the coffin” of efforts to remove Trump from the ballot.
“The American voter has the constitutional right to vote for the candidate of their choice,” Steven Cheung said in a statement. “This right has been properly preserved in Colorado today and we call for the rapid elimination of all remaining Democratic election challenges.”
But Derek Muller, a law professor at the University of Notre Dame who has closely followed the case, said it was too early to declare that efforts to remove Trump from the ballot have been canceled. This is especially true in Colorado, he said, given how the judge decided the case.
Colorado judge keeps Trump on voter rolls despite ‘insurrection’
Wallace discovered that Trump engaged in an insurrection when he encouraged his supporters to storm the Capitol on January 6, 2021.
But Wallace ruled that section three of the 14th Amendment, which prohibits an “officer of the United States” engaged in insurrection from serving again, did not cover a president.
“The Colorado case is a perfect vehicle for appeal,” Muller said. “A trial judge held a week-long hearing and made the factual finding that Trump engaged in an insurrection. On appeal, only one clear legal question remains, whether the presidency is covered by Article Three.”
Muller said he thought there was a good chance the groups would succeed on appeal, but he acknowledged that uncertainties remain.
The group that filed the suit, Citizens for Responsibility and Ethics in Washington, has already promised to appeal.
“Today is not the end of this effort,” said the group’s president, Noah Bookbinder, “but another step on the journey.”
What the 14th Amendment Says About Insurrection
The section of the 14th Amendment at issue in these cases, Section 3, says that no person may hold federal office if he or she “has previously taken the oath of office, as a Member of Congress or as an officer of the United States- United… must have engaged in insurrection or rebellion against it, or given aid or comfort to its enemies.
The clause in question has only been used a few times since immediately after the Civil War. Trump’s lawyers argued that he was never supposed to run for president, which is not mentioned in the text. They also framed the legal effort as an attempt to take away voters’ right to choose a president.
Minnesota’s highest court ruled Nov. 8 that Trump must be allowed appear on the state’s presidential primary ballotalthough the courts may revisit the issue for the general election.
The Minnesota court, in a four page order, said the state’s primary election was an “internal party election” and that winning that election does not necessarily put the candidate on the ballot for the state’s general election. No state law prohibits a political party from nominating a candidate who may not be eligible for office, the court wrote.
Meanwhile, a Michigan judge ruled Tuesday that Trump would appear on the ballot and wrote that questions about how to define an “insurrection” would be better left to Congress than the courts.
“It makes the decision as to whether there was a rebellion or insurrection and whether or not anyone participated in it from Congress, a body composed of elected representatives of the people of each state in the nation, and it entrusts it to a single court. officer, a person who, however well-meaning, impartial, just, and learned, cannot in any way or form embody the represented qualities of every citizen of the nation – as the House of Representatives does and the Senate,” said Justice James Robert of Michigan. » Redford wrote.
Contributor: David Jackson