Some on the right and left have claimed that former President Trump could be disqualified from appearing on the 2024 presidential ballot. Several legal experts dismiss that theory as not just implausible but potentially dangerous.
The legal theory goes that Trump could be blocked from the ballot point as Section 3 of the 14th Amendment to the U.S. Constitution — the Disqualifications Clause — bars individuals who “have engaged in insurrection or rebellion” against America, or aided those engaged in such, from holding office.
The section also includes a provision allowing Congress to “remove such disability” via “a vote of two-thirds” in each chamber.
However, the argument for the Disqualifications Clause does not hold water, according to multiple legal experts.
George Washington University law professor Jonathan Turley says there “are good faith arguments in favor of this claim” but he views the theory as “not simply dubious but dangerous.”
The proponents of preventing former President Trump from appearing on the ballot point to Section 3 of the 14th Amendment to the U.S. Constitution as the means for a state to bar the former president from appearing on the ballot.(Sam Wolfe for The Washington Post via Getty Images)
“The amendment was written to deal with those who engage in an actual rebellion causing hundreds of thousands of deaths,” Turley said. “Advocates would extend the reference to ‘insurrection or rebellion’ to include unsupported claims and challenges involving election fraud.”
Turley said he has long criticized Trump’s January 6 speech, but he views the violence at the Capitol that day as “a protest that became a riot.” That definition would be crucial to applying the 14th Amendment, according to Turley, and Trump has not been found guilty of insurrection or incitement to rebellion.
“According to these advocates, Trump can be barred from the ballot without any charge, let alone a conviction, of insurrection or rebellion,” Turley said.
George Washington University law professor Jonathan Turley says he has “long rejected this hearing as contrary to the 14th amendment’s text and history.”(Fox News)
Turley said the proponents “also argue that there is no action needed from Congress” and thus, “state and federal judges could just bar those who are deemed as supporting rebellion through their election challenges and claims.”
Heritage Foundation senior legal fellow Hans von Spakovsky told Fox News Digital that it is his opinion that there are no legal grounds to keep Trump off the ballot via the 14th Amendment.
Von Spakovsky said that liberals were making the same argument against several conservatives prior to the 2022 midterm elections, citing the January 6 Riots.
“They were all unsuccessful,” Von Spakovsky said. “And every discussion that I’ve seen of this ignores the fact nobody ever mentions that they talk about Section 3 of the 14th Amendment as if it currently exists.”
Von Spakovsky noted the two-thirds vote provision allowing Congress to “remove such a disability” under the Disqualifications Clause and argued that the legislature already has removed the clause.
Heritage Foundation senior legal fellow Hans von Spakovsky told Fox News Digital that it is his opinion that there is no legal grounds to keep Trump off the ballot via the 14th Amendment.(Eva Marie Uzcategui/Bloomberg via Getty Images)
“In 1872, they passed . . . the Amnesty Act, and it removed the Section three disqualification, with certain exceptions, including anybody who had served in two of the Congresses just before the Civil War, and members of the military, for example, who had been in the Union Army and had served the Confederacy,” Von Spakovsky said.
“In 1898, Congress passed a second amnesty act that completely got rid of all of those exceptions,” he added. “So the Disqualification Clause, it’s gone. It’s not valid anymore.”
Push to bar Trump from ballot gains steam
However, despite any challenges, some legal scholars say that there are paths to prevent Trump from being on the ballot, and the idea continues to gain attention.
Center for American Progress Action Fund senior fellow Michael Sozan told Fox News Digital, “This must not become a partisan matter.”
“Following the plain language of the Constitution, Donald Trump and other officials who were involved in the January 6 insurrection are disqualified from holding future public office,” Sozan argued. “This conclusion is supported by a wide range of respected constitutional law experts — across the ideological spectrum.”
“There are multiple paths to formally carry out Section 3 of the 14th Amendment. The most straightforward way is for state election officials to disqualify Trump from appearing on their state’s ballot. No doubt, this will be challenged in court — but if Supreme Court justices are serious about applying the Constitution’s plain words, they will agree with the disqualification.”
However, even if efforts to take to remove Trump from the ballot begin, there’s no guarantee they will succeed, according to Fox News contributor and former deputy independent counsel Sol Wisenberg.
Wisenberg told Fox News Digital that there “is a legal path for states to TRY to remove Trump from the ballot,” but he believes “that it will fail.”
“I think the issue will make it to the federal courts, because it is likely that at least one Democratic state official will make the determination to take Trump off the ballot,” Wisenberg said. “I believe the case will make its way fairly rapidly to the U.S. Supreme Court.”
“I expect the Court to hold that a Presidential candidate cannot be removed from the Presidential ballot without: 1) some sort of enabling legislation passed by Congress that sets up a judicial process for determining whether that candidate has engaged in insurrection or rebellion; and 2) an actual trial under said statute,” Wisenberg continued.
Von Spakovsky noted the two-thirds vote provision allowing Congress to “remove such a disability” under the Disqualifications Clause and argued that the legislature got “rid of” the clause.(Jabin Botsford/The Washington Post via Getty Images)
“There is already one such statute, in place. It is Title 18 U.S. Code, Section 2383, covering rebellion or insurrection,” he added.
Title 18, Section 2383 of the U.S. Code says that whoever “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
Several states are seeing calls to ban Trump from the ballot, but it is unlikely that the proposals will be taken up.
Arizona Secretary of State Adrian Fontes said on a podcast this week that the state Supreme Court ruled “there’s no statutory process in federal law to enforce Section 3 of the 14th amendment” and that “you can’t enforce it.”
“That’s what the Arizona Supreme Court said, so that’s the state of the law in Arizona. Now, do I agree with that? No, that’s stupid,” Fontes said, noting that he would “follow the law” in Arizona, even though he disagrees with it.
Additionally, despite being a vocal GOP critic of former President Donald Trump, New Hampshire Gov. Chris Sununu — along with other state party officials — is staying away from a long-shot effort to keep Trump off the presidential ballot.
Bryant “Corky” Messner, an attorney and prominent Republican who won the 2020 Republican Senate nomination, thanks in great part to Trump’s support, is mulling a lawsuit if Trump later this year files to put his name on the New Hampshire primary ballot.
Messner is very publicly questioning the former president’s eligibility to run for the White House, and cites Section 3 of the 14th Amendment of the U.S. Constitution. That section disqualifies those who’ve taken an oath to support the Constitution from holding office again if they’ve “engaged in insurrection or rebellion” against the U.S. “or given aid or comfort to the enemies thereof.”
Fox News Digital’s Paul Steinhauser contributed reporting.
Houston Keene is a politics writer for Fox News Digital. Story tips can be sent to [email protected] and on Twitter: @HoustonKeene