How The 14th Amendment Puts Trump’s Candidacy At Risk At The Supreme Court

Nearly a decade ago, Mark Graber, a constitutional law professor at the University of Maryland, started researching a new book. He wanted to examine how the lawmakers who crafted the 14th Amendment in the aftermath of the Civil War actually thought at the time about the new constitutional provision that provided equal citizenship rights to all citizens, no matter their race.

Graber wouldn’t focus on the amendment’s heavily cited Section 1, with its equal protection, due process and birthright citizenship clauses. Instead, he intended to dig into the more obscure sections, covering reapportionment of congressional representatives, the validity of the public debt and the disqualification from office for insurrection and rebellion, and explore the legal thinking of the era.

“My purpose was not to affect any constitutional law, but to show that the constitutional universe of the Republicans who wrote the 14th Amendment was so different from ours,” Graber said.

The disqualification provision in the 14th Amendment — Section 3 — was particularly obscure when Graber began. Indeed, he labeled it “the most forgotten section” of the 14th Amendment in a draft chapter of his book, which he finished at the end of 2020 and published this past summer. It had only been employed once since the Reconstruction era that ended in the late 19th century (to, questionably, unseat a socialist congressman who advocated draft dodging during World War I). Not only had it gone into total disuse in the courts, no one in academia had even bothered to study it outside of a brief mention as an artifact of a bygone era. Who could it possibly apply to? No one who had taken an oath of office to support the Constitution would engage in an insurrection, whatever that meant, in this day and age? Right?

That changed on Jan. 6, 2021, when then-President Donald Trump’s effort to overturn his 2020 election loss culminated in an attack on the U.S. Capitol by his supporters after he had told them to march on the building and “fight like hell.”

“Almost immediately, I got a couple of phone calls,” Graber said. The callers, reporters, said, “‘You’re the only person doing research on this. Does this [insurrection] matter?’ And I began to realize that it did.”

Three years later, it still does. Colorado and Maine have made the monumental decision to declare Trump, who is running for president again, ineligible from appearing on their ballots under Section 3 of the 14th Amendment for participating in an insurrection on Jan. 6.

These controversial decisions mark the first use of Section 3 to disqualify a candidate since World War I, and the first appearance in the courts of a Section 3 question since Reconstruction. It is also the first time any presidential candidate — not to mention the presumptive Republican Party nominee — has been disqualified for participating in an insurrection.

Those disqualifications are now before the Supreme Court, which on Feb. 8 will hear arguments that could either put Trump back on the ballot or allow states to remove him under Section 3. The stage is set for a possibly earth-shaking constitutional decision that could turn our already simmering politics up to a frothing boil.

The obvious reason, of course, why Trump finds himself facing challenges to his eligibility as a candidate under Section 3 is that he helped incite an insurrection on Jan. 6 and avoided any official sanction for it. After being impeached in the House for “incitement of insurrection,” the Senate acquitted Trump by a vote of 57-43. Had the Senate convicted Trump, he would have been constitutionally barred from future officeholding. Trump has denied doing anything wrong on Jan. 6.

But it wasn’t clear whether Congress would take further action. Following his acquittal, Democrats in Congress discussed the possibility of passing legislation creating a method to disqualify candidates like Trump under Section 3, but this effort fizzled quickly. That’s when a couple of liberal legal groups stepped in to take action.

“Right after the Jan. 6 insurrection we began to look at Section 3 of the 14th Amendment with respect to the need to enforce it against Donald Trump were he to run for office again,” said John Bonifaz, president of Free Speech for People, a progressive legal nonprofit and one of the groups that has led the charge to remove Trump from ballots.

The group, perhaps best known for its previous work trying to overturn the Supreme Court’s 2010 decision in Citizens United v. FEC, started in June 2021 with letters to the secretaries of state of all 50 states and the District of Columbia urging them to “exercise your authority and obligation to exclude Mr. Trump from the ballot,” if he chooses to run again. None of the secretaries of state took Free Speech for People up on its request.

The next move was to the courts. In early 2022, Trump hadn’t yet announced that he was running for president again, so the group filed Section 3 disqualification lawsuits against a number of Republican lawmakers who participated in some way in Trump’s efforts around the Jan. 6 insurrection.

They targeted then-Rep. Madison Cawthorn (R-N.C.), who spoke at Trump’s rally that precipitated the insurrection, Rep. Marjorie Taylor Greene (R-Ga.), who encouraged the protest as “our 1776 moment” and sat in on planning meetings, and Arizona Republican Reps. Andy Biggs and Paul Gosar and Arizona state Rep. Mark Finchem, who also participated in planning meetings with groups that participated in the insurrection.

These lawsuits, brought by individual citizens in their respective states, were the first legal challenges under Section 3 in over 120 years. Beyond simple questions of guilt, there were a lot of novel questions for courts and other judicial bodies to answer, ones that could prove consequential if and when Trump made his campaign announcement: What would the courts say about particular arguments used to dismiss Section 3 disqualification lawsuits? Was Jan. 6 actually an insurrection under Section 3? Could citizens even bring cause of action suits challenging candidates under Section 3? Even without going after Trump himself, the cases brought by Free Speech for People against his allies would end up providing some answers for this moribund area of law.

In North Carolina, Cawthorn filed a counter suit in federal court seeking to get the case against him tossed by arguing that Section 3 was meant to only disqualify ex-Confederates following the Civil War and should not be applied to future insurrections or rebellions. After an initial win for Cawthorn, the Fourth Circuit Court of Appeals ultimately found against him, ruling that Section 3 continues to apply to those engaged in modern insurrection or rebellion.

Similarly, Greene sued in federal court to get the case against her dismissed. A district court judge rejected many of her arguments, ruling that states can adjudicate Section 3 disqualifications, her constitutional rights were not violated, a criminal conviction is not necessary for disqualification, speech acts can constitute participation in an insurrection, and that the Amnesty Act of 1872 that removed Section 3 disqualification from most ex-Confederates did not apply to participants in the events of Jan. 6.

These cases may not have resulted in disqualification for Cawthorn or Greene, but they did eliminate some arguments from the toolbox of those facing such challenges. For example, no one has tried to argue that Section 3 only applied to ex-Confederates since Cawthorn’s case. And Greene’s decision clarified that citizens can bring suits to disqualify candidates under Section 3, and the ruling played a role in other subsequent Section 3 cases, including Trump’s disqualification in Colorado, by stating that a criminal conviction is not necessary for disqualification.

“We’re proud to have catalyzed this work,” Bonifaz said. “We see those cases as providing building blocks for this fight now.”

As Free Speech for People challenged the eligibility of congressmen and state representatives for participating in some way in Jan. 6, Citizens for Responsibility and Ethics in Washington (CREW), a liberal legal group, brought a lawsuit against someone who had already been prosecuted for breaking the law during the insurrection, who they could argue was thus ineligible for election.

At first, the group wasn’t particularly focused on Trump, as he wasn’t running for election at the time, and instead looked at actors who seemed to clearly fit Section 3’s requirement of an official who had sworn an oath to support the Constitution and had then engaged in insurrection.

“We started thinking about where it makes sense to bring a case like this, who are the officials that we think most meet this standard and where are the places that provide state-level causes of action under Section 3,” said Donald Sherman, chief counsel for CREW.

Couy Griffin, the leader of Cowboys for Trump and a county commissioner in Otero County, New Mexico, fit the bill. The state allowed citizens to bring suits to challenge ballot access and Griffin was, at the time, the most well-known officeholder who had been charged and convicted for crimes committed on Jan. 6.

Griffin, who had been active in agitating around the country for the election result to be overturned as part of the “Stop the Steal” campaign, had been found guilty in a D.C. court in 2022 of trespassing at the Capitol on Jan. 6 after joining the mob that breached barriers erected by the Capitol Police. Following his participation in the Jan. 6 insurrection, Griffin warned of an even bigger protest for President Joe Biden’s inauguration that would leave “blood running out of that building.” CREW sued in New Mexico state court in March 2022 to have Griffin disqualified from the ballot under Section 3 soon after his guilty conviction.

In September 2022, a New Mexico state judge ruled that Griffin was indeed disqualified from holding office under Section 3 and ordered him removed from office. In his decision, the judge clarified how Section 3 should be applied to Jan. 6 by stating that the attack on the Capitol was, in fact, an insurrection under Section 3 and that Griffin participated in it both through his acts at the Capitol and by promoting, planning and inciting it in the months leading up.

“The judge got it right,” Graber, who served as an expert witness in the Griffin case, said. “The judge correctly understood that an insurrection is not necessarily overthrowing the entire government. It doesn’t have to be the Civil War.”

Along with the precedent-setting decisions, the lead-in to Trump’s disqualification in Colorado and Maine has featured something rare for legal academics: fast-paced and extremely consequential research.

Since Section 3 was so little studied, Graber was doing his research on the definition of insurrection even as the aftermath of Jan. 6 continued to play out.

“Between the Greene trial and the Griffin trial, I did the research on insurrection that I think has strengthened the case,” Graber said.

Particularly important was Graber’s testimony in Griffin’s case, based on his research on what the drafters of the 14th Amendment thought insurrection to mean. The judge’s ruling ended up using Graber’s four-part definition of insurrection: an assemblage of people; resisting a federal law; with the intent of coercing a legislature by force, violence, or intimidation; for a public purpose.

Prior to Jan. 6, Graber, along with Indiana University’s Gerard Magliocca, were the only two legal academics researching Section 3.

“I got into this in 2020 because it was a provision of the Constitution that nobody had written about before,” Magliocca said.

When people began describing what took place on Jan. 6 as an insurrection, he knew immediately that Section 3 would soon go from something no one studied to the center of the political universe.

Like Graber, Magliocca’s work examined the history and meaning behind Section 3 at the time of its enactment. This helped the courts following Jan. 6 as they tried to define an insurrection, by showing that Section 3 does not require authorizing legislation from Congress, exposing the contradictions and intent behind two important 19th century Section 3 cases and whether the president is an “officer of the United States.”

Magliocca’s pre-Jan.6 research, along with Graber’s, provided the foundation upon which all of the legal arguments and post-Jan. 6 research would rest. And its timing was untainted by any charge of bias against Trump or his actions following the 2020 election.

“There are things that I looked at or reached conclusions about before Jan. 6, so that gives me more confidence that they’re right,” Magliocca said. “They’re not influenced by what it means for this case or for Trump.”

Magliocca provided his expertise to Free Speech for People as the group pursued Section 3 challenges to GOP lawmakers in 2022, including testifying in Greene’s case. He would go on to help out with CREW’s challenge to Trump’s eligibility in Colorado.

Because after Trump became a 2024 presidential candidate, which he announced in November 2022, his constitutional qualification as a candidate under Section 3 could be challenged.

“It’s not like we were pining to bring litigation against Trump,” Sherman said. “Running for office created a mechanism for holding him accountable. But also Trump incited the insurrection. If you don’t bring a Section 3 case against him, it’s hard to justify bringing a case against someone else.”

Free Speech for People and CREW examined which states provided citizens with a cause of action, like in the New Mexico case against Griffin, that could be used to challenge Trump under Section 3 in state courts or other election bodies. Ahead of potential legal action, Free Speech for People targeted letters to 18 secretaries of state, urging them, again, to rule Trump disqualified.

These efforts still rumbled under the surface until August 2023, when two conservative law professors — University of Chicago’s William Baude and University of St. Thomas’ Michael Stokes Paulsen — published a 126-page study on Section 3 and Trump’s potential disqualification.

The Baude and Paulsen study took a strict originalist approach and, building on the work of Graber and Magliocca, found, among other things, that Jan. 6 was an insurrection as originally understood by the 14th amendment drafters, that Trump participated in it, and that Trump was an officer of the United States who swore an oath to defend the Constitution and, therefore, should be disqualified from holding future office.

Their paper received attention across the press, social media and the blogs of constitutional lawyers, liberal and conservative. It sparked response papers from other conservatives who disagreed with their findings.

“There’s no question that the Baude and Paulsen piece was a monumental article to come out as we were preparing to file our first challenge in Minnesota,” Bonifaz said.

One reason is simply who they are: conservatives with impeccable resumes in the conservative legal world, including membership with the influential Federalist Society.

“Two scholars who are Federalist Society members laying out, from an originalist perspective, why the president is disqualified,” Sherman said. “It’s hard to overstate the impact of that in the public.”

Krista Kafer, a conservative columnist for The Denver Post in Colorado, describes herself as a “conflicted voter.” She identified as a “Never Trumper” in 2016, but ultimately voted for Trump in 2020 to support his tax policies and judicial appointments in spite of his “repulsive,” as she said, demeanor.

But even that conflicted support ended the next day when Trump falsely declared he had won the election and embarked on a campaign of lies that led to Jan. 6.

“I didn’t know that he would create an entire conspiracy theory with the help of a pillow manufacturer,” Kafer said. “That was outside of my imagination.”

When Trump announced that he would run for election a third time, Kafer felt that something had to be done to stop him. She was contacted by Mario Nicolais, a Republican attorney in Colorado working with CREW, to become one of the GOP primary voters to challenge Trump’s qualification for the party’s primary election ballot.

She had read Baude and Paulsen’s paper, which, as a conservative supporter of originalist jurisprudence, left an impression on her.

“This made a lot of legal sense to me,” Kafer said. “Someone ought to do it. And if you think it ought to be done, then you ought to do it.”

Kafer and five other GOP primary voters, including former state legislator Norma Anderson and former congresswoman Claudine Schneider, filed suit with CREW to challenge Trump’s qualification for the ballot under Section 3 on Sept. 6, 2023. Other challenges brought by Free Speech for People followed in Michigan and Minnesota.

A Denver district court judge ruled on Nov. 17 that Trump had engaged in insurrection on Jan. 6, but that he cannot be removed from the ballot. Despite the caveat, this was the first time a court had found that Trump participated in an insurrection. The plaintiffs appealed to the Colorado Supreme Court.

On Dec. 19, the court issued a 4-3 decision removing Trump from the ballot. While the case heavily rested on Colorado state law, the majority opinion agreed with all of the major points argued by Graber, Magliocca and Baude and Paulsen in their research. Trump quickly appealed to the U.S. Supreme Court, which put the decision on hold.

Nine days later, Maine Secretary of State Shenna Bellows, a Democrat, announced that she had also found Trump to be disqualified from her state’s ballot under Section 3. Bellows’ decision was appealed to the state Supreme Court, which put a hold on it until the U.S. Supreme Court rules on Trump’s challenge to the Colorado case.

Not every challenge has gone against Trump. The challenges in Michigan and Minnesota were dismissed under the reasoning that state law prohibited interference in a political party primary, but also said that the challenges could be raised for the general election. Another challenge in Oregon reached a similar conclusion, as did one in Washington. Meanwhile, Free Speech for People filed another two lawsuits challenging Trump in Illinois and Massachusetts. The Illinois Board of Elections allowed Trump to remain on the ballot in the state after dismissing the case on Jan. 30.

But it is the Supreme Court that will have the ultimate say on whether states can disqualify Trump under Section 3. The arguments scheduled for Feb. 8 will be the first time the full court has ruled on Section 3 disqualification. It is hard to know what the justices will do, because there is scant record on what anyone thinks about this issue over the past 100 years.

What is clear is how the country found itself in this position.

“We are here because of Donald Trump. He chose to engage in an insurrection on Jan. 6. He chose to seek the presidency again. His choices brought us here more than anybody else’s,” Sherman said. “If we win, I’m sure people will be asking us what’s next, but that is not a question for us, that is a question for the former president. Is he going to continue to hold this nation hostage because he refuses to abide the Constitution?”