Constitutional debate over Trump’s eligibility to run more extensive than realized

David Zalubowski/AP Photo

The idea of barring former President Donald Trump from seeking the presidency on grounds that it would violate the 14th Amendment may be an increasingly catchy constitutional argument pushed by a segment of legal scholars and activists.

But it turns out election officials have been discussing how to handle it for months.

“We have been thinking about this in my office for quite some time, before the start of the year, assuming that this will play out,” Colorado Secretary of State Jena Griswold said in an interview.

Underscoring the seriousness with which she has been treating the topic, Griswold noted that “there have been conversations among secretaries” about it.

The legal theory argues Trump is constitutionally disqualified from running for president under the 14th Amendment’s “insurrection clause,” which states that anyone who “engaged in insurrection or rebellion” after taking an oath of office to defend the Constitution is forbidden from holding public office.

The theory has rarely been tested in modern times, creating a significant degree of uncertainty around who even has the ability to make the determination on whether Trump should be kept off the ballot — let alone what legally is considered “an insurrection or rebellion.”

And some election officials — including Georgia’s Brad Raffensperger, a Republican who resisted Trump’s attempts to overturn the 2020 election — are saying they don’t have the authority to make that determination.

Now the theory is being tested.

The liberal watchdog group Citizens for Responsibility and Ethics in Washington, or CREW, sued Griswold on Wednesday in Colorado court to have Trump declared ineligible. It is one of the first lawsuits looking to bar the former president from the ballot.

Griswold said the lawsuit in her state was likely one of the first on the issue — but not the last.

“We can expect a lot of lawsuits filed on this issue across the nation,” she said in an interview with POLITICO on Wednesday. “I’m really hopeful that this case will provide guidance to election officials.”

Griswold, who also chairs the Democratic Association of Secretaries of State, has been a sharp critic of Trump’s efforts to overturn the 2020 election, regularly blaming the former president’s spread of misinformation for threats election workers have faced. She has called him a danger to democracy.

“This is an unprecedented situation. We’ve never had a president incite an insurrection and attack our democracy like this,” she said.

Yet, Griswold added that “there are several things that are unclear” when it comes to how the 14th Amendment may apply to ballot access. “The U.S. Constitution does not say whether someone who has engaged in insurrection is prohibited from running for office, or just prohibited from being seated into that office. Colorado law is also arguably unclear.”

Griswold declined to go into detail on the pending lawsuit. Asked whether she has the authority herself to decide on Trump’s eligibility, she said it was her belief that “the court has to make those determinations and likely will.” When asked explicitly if she thought Trump was ineligible to run, Griswold demurred, saying she “thinks it is important for a court of law to resolve crucial questions for the state of Colorado, in terms of ballot access, and for the country.”

A handful of other secretaries of state have also publicly discussed the 14th Amendment push.

Adrian Fontes, the Democratic secretary of state of Arizona, recently told MSNBC that his office was still “deciding how to decide,” noting he has only until mid-December to determine who is eligible to be on the primary ballot in the battleground state.

He said that the issue would ultimately make its way to the U.S. Supreme Court — a sentiment other secretaries have echoed.

Jocelyn Benson, the Democratic secretary of state in Michigan, also recently told MSNBC that the “arguments for disqualification are quite strong, but we also have to recognize we are in uncharted territory here.” And New Hampshire Secretary of State David Scanlan, a Republican, told NH Journal that he “will be seeking input from the attorney general and others so I better understand the legal issues that are involved” after some in the state have pushed the idea.

Raffensperger wrote an op-ed Wednesday in The Wall Street Journal saying he did not have the authority to use the 14th Amendment to block Trump from the ballot — and suggesting it would be unwise for election officials elsewhere to do so.

“Georgia law contemplates a legal process that must take place before anyone is removed from the ballot,” he wrote. “Anyone who believes in democracy must let the voters decide.”

A handful of organizations have been calling on secretaries of state to disqualify Trump. A pair of organizations, Free Speech for People and Mi Familia Vota Education Fund, sent letters to top election officials in nine states — including Colorado, Georgia and Michigan — in July urging them to bar the former president from the ballot.

“We're having both private and public conversations with various secretaries of state, and it could well be yet that one courageous official makes the first move and then a larger number follow,” Ron Fein, Free Speech for People’s legal director, said in an interview earlier this week, declining to share details about conversations his organization has had with election officials.

There have been few recent cases testing the “insurrection clause.” But notably, CREW represented New Mexico voters who successfully sued in state court to remove a New Mexico county commissioner from office who was convicted of illegally entering the Capitol grounds on Jan. 6. CREW noted on Wednesday that the New Mexico case was “the only successful case to be brought under Section 3 since 1869.”

And while the efforts have, so far, largely focused on at least nominally competitive states, Griswold said it may not stay that way.

“All secretaries of state should be focused in on this issue as something that’s developing across the country,” she said.