Who Decides Whether Trump Can Run, and What Sort of Evidence Suffices?

Letting state officials determine whether a candidate has "engaged in insurrection" opens a huge can of worms.

On Thursday, Maine joined Colorado in concluding that Donald Trump is disqualified from running for president because he "engaged in insurrection" by inciting the January 6, 2021, riot at the U.S. Capitol. Both of those decisions raise the question of what counts as an "insurrection" under Section 3 of the 14th Amendment and what it means to "engage in" one. The conjunction of Trump's ballot exclusion in Maine, which is based on a decision by the state's top election official, with his disqualification in Colorado, which is based on a ruling by that state's Supreme Court, highlights two more issues: Who decides whether a candidate is covered by Section 3, and what standard of proof should apply?

Section 3, which originally was aimed at preventing former Confederates from returning to public office after the Civil War, says "no person shall…hold any office, civil or military, under the United States…who, having previously taken an oath…as an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof." In its December 19 decision applying that provision, the Colorado Supreme Court partly upheld and partly overturned a ruling by Denver District Court Judge Sarah B. Wallace.

The case began with a lawsuit by several anti-Trump voters who sought an injunction compelling Colorado Secretary of State Jena Griswold to exclude him from the presidential primary ballot. Trump and the Colorado Republican State Central Committee joined the case as intervenors. After a five-day trial, Wallace concluded that "clear and convincing evidence" showed Trump had engaged in insurrection but that Section 3 does not apply to the presidency. The Colorado Supreme Court agreed with the first conclusion but disagreed with the second.

In Maine, by contrast, three challenges to Trump's candidacy were filed directly with Secretary of State Shenna Bellows, who held a hearing on December 15. Based on "a preponderance of the evidence" (a weaker standard than the one used in Colorado), Bellows concluded that "Mr. Trump's primary petition is invalid" because "he is not qualified to hold the office of the President under Section Three of the Fourteenth Amendment" and falsely claimed otherwise. The Trump campaign is appealing that decision in state court.

According to one interpretation of the 14th Amendment, neither the Colorado Supreme Court nor Bellows had the authority to decide whether Trump is disqualified based on his allegedly insurrectionary conduct. Under Section 5 of the amendment, "the Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Congress arguably did that when it passed the Insurrection Act in 1948. Under that statute, "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."

Although Trump has been charged with federal and state crimes based on his efforts to reverse the outcome of the 2020 presidential election, he has not been charged with insurrection, let alone convicted of that offense. According to some critics of the Colorado and Maine decisions, that means he cannot be excluded from the ballot under Section 3. That argument assumes that Section 3 can take effect only through congressional legislation and that a conviction based on proof beyond a reasonable doubt is necessary to disqualify Trump.

One piece of evidence in support of the first premise, dissenting Colorado Supreme Court Justice Carlos Samour Jr. noted, is an opinion that Chief Justice Salmon P. Chase wrote the year after the 14th Amendment was ratified. Chase took the position that Section 3 was not self-executing. University of Chicago law professor William Baude and University of St. Thomas law professor Michael Stokes Paulsen argue that Chase was "simply wrong on this point." While Congress could pass legislation to enforce Section 3, they say, that does not mean the provision has no effect without such legislation.

In a 2023 law review article, Baude and Paulsen make an originalist case for a broad reading of Section 3 that they think clearly covers Trump. They also argue that any state or federal official charged with determining who is qualified to appear on a ballot, which would include state judges and secretaries of state, is not only authorized but obligated to disqualify Trump, along with "potentially many others" who participated in "the attempted overthrow of the 2020 presidential election."

As Baude and Paulsen see it, "Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress." It therefore "can and should be enforced by every official, state or federal, who judges qualifications." Those officials, Baude and Paulsen concede, may have different views about what sort of conduct disqualifies a candidate under Section 3. But they say uncertainty about the reach of Section 3 does not absolve officials of the responsibility to enforce it.

"Some applications," such as "declaring unilateral secession from lawful constitutional government" or "the taking up of arms against government," will be "clear and virtually indisputable, falling within the terms' core meaning," Baude and Paulsen write. "At the other end of the continuum, there will be situations that clearly lie in a safe harbor outside the legitimate range of meaning of Section Three's terms—ordinary expression of political dissent as well as even ordinary law violations."

Between those two extremes, Baude and Paulsen say, "there is a zone of reasonable, fair construction of allowable interpretation and application in which government officials may make judgments that must be conceded to be within the range of what the Constitution permits—and where the decisions and actions of government officials exercising their constitutional powers consequently cannot be considered unlawful and thereby subject to judicial invalidation. Within that fair range of meaning, different interpreters legitimately can reach  differing conclusions, all in accordance with the Constitution."

The implication is that Maine's courts have no business second-guessing Bellows' determination that Trump is disqualified from the ballot. Since Baude and Paulsen think Trump is clearly covered by Section 3, Bellows' agreement on that point must qualify as a "reasonable, fair construction" and "allowable" application, meaning it is not subject to "judicial invalidation." Such broad executive-branch discretion in applying an ambiguous constitutional provision seems to open a huge can of worms, especially given Baude and Paulsen's view that not just Trump but "potentially many" other candidates could be affected.

What about due process? Trump argues that neither Wallace's trial nor Bellows' hearing gave him an adequate opportunity to contest the claim that he engaged in insurrection. Many observers, including vigorous Trump critics, agree.

"Our government cannot deprive someone of the right to hold public office without due process of law," Samour wrote in his dissent. "Even if we are convinced that a candidate committed horrible acts in the past—dare I say, engaged in insurrection—there must be procedural due process before we can declare that individual disqualified from holding public office….If President Trump committed a heinous act worthy of disqualification, he should be disqualified for the sake of protecting our hallowed democratic system, regardless of whether citizens may wish to vote for him in Colorado. But such a determination must follow the appropriate procedural avenues. Absent adequate due process, it is improper for our state to bar him from holding public office."

The Washington Post made the same point in an editorial criticizing the Colorado Supreme Court's ruling. "The case's most consequential conundrum," it said, is "whether Mr. Trump really did engage in insurrection….What's missing from the majority's analysis is due process of law. Not only has Mr. Trump not been convicted of insurrection either by a jury of his peers or from the bench by a judge; he hasn't even been charged with it."

According to Baude and Paulsen, such criticism is misplaced. The Fifth and 14th Amendments say no person may be deprived of "life, liberty, or property" without "due process of law." But "it is far from clear that the right to hold public office is a form of
life, liberty, or property," Baude and Paulsen write. "It is a public privilege, a public trust, to be vested with the power of the people. And though it is a closer case, the same thing may be true even for those who already hold office at the moment that Section Three disqualifies them. Due process protects private vested rights from public deprivation. It does not protect public rights." In any case, they say, Section 3 supersedes due process in this context. They make a similar argument regarding potential conflicts between Section 3 and the First Amendment.

George Mason law professor Ilya Somin agrees that a criminal conviction is not necessary to disqualify Trump under Section 3. Since this is a civil process, he says, it makes sense that a weaker standard than proof beyond a reasonable doubt would apply. He also notes that "none of the ex-Confederates who were adjudged disqualified during Reconstruction had ever been convicted of any crimes related to their roles in the Civil War."

While former Confederates had indisputably participated in an insurrection, however, the same cannot be said of Trump. He vigorously denies it, and even critics who think he is manifestly unsuited for the presidency do not necessarily agree that his conduct is covered by Section 3. Nor is the historical record very helpful in answering that question.

In 2020, Indiana University law professor Gerard Magliocca wrote what he described as "the first scholarly account" of Section 3. In a 2021 Lawfare essay, Magliocca said he had been "unable to find any particularly helpful authority" on the question of what counts as an "insurrection." In the 1860s and 1870s, he noted, "everyone understood that the insurrection in question was the Confederacy, and no thought was given to what other insurrections might look like." He nevertheless thought the Capitol riot was plausibly viewed as an insurrection.

"The mob was seeking to halt or overturn a core constitutional function at the seat of government, which can reasonably be described as an attempt to replace law with force," Magliocca wrote. Furthermore, the criminal charges against some of the rioters indicated that they "intended to inflict bodily harm on members of Congress, which can be reasonably understood as a direct attack on the legislative branch itself and, more generally, the existing government."

More recently, Magliocca has taken a firmer stand. "I think that January 6 constitutes an insurrection within the meaning of Section 3," he told Boston's NPR station last week. "I think that former President Trump engaged in insurrection before and on January 6."

If "no thought was given to what other insurrections might look like" at the time the 14th Amendment was proposed and ratified, it is hard to be confident in that assessment. And if such disputes are to be resolved by state officials across the country, applying varying interpretations of Section 3 and varying standards of proof, the results are apt to be wildly uneven and inconsistent. "I am disturbed about the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis," Samour wrote. "Surely, this enlargement of state power is antithetical to the framers' intent."

To forestall that scenario, the U.S. Supreme Court need not reach the question of whether Trump engaged in insurrection. It could rule that Section 3 is not self-executing or that it does not apply to Trump because the presidential oath does not meet Section 3's criteria or because "any office, military or civil, under the United States" was not understood to include the presidency.

University of Richmond law professor Kurt Lash, a 14th Amendment scholar who recently wrote a paper on "the meaning and ambiguity" of Section 3, favors that last rationale. "At best, the text of Section 3 is ambiguous regarding the office of president," he writes in The New York Times. "The Supreme Court should limit the clause to its historically verifiable meaning and scope. Let the people make their own decisions about Donald Trump."