A video of former President Donald Trump is played during a hearing by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol in the Cannon House Office Building on Oct. 13, 2022 in Washington, D.C. The bipartisan committee, in possibly its final hearing, has been gathering evidence for almost a year related to the Jan. 6 attack at the U.S. Capitol. On January 6, 2021, supporters of former President Donald Trump attacked the U.S. Capitol Building during an attempt to disrupt a congressional vote to confirm the electoral college win for President Joe Biden. (Alex Wong/Getty Images)
There is no serious dispute about it: Former President Donald Trump while still in office engaged in insurrection when he impelled a mob to storm the U.S. Capitol.
Also not in dispute: A clause in the 14th Amendment bars any office holder who engaged in insurrection from again holding office.
There should be no disputing then that Trump, the leading 2024 candidate for the Republican presidential nomination, should never again be allowed to hold any office, let alone the presidency.
His campaign is gaining momentum, propelled by the adoration of cultish rallygoers, abiding loyalty of MAGA members of Congress, and even — you wonder how we got here — his recent arrest on criminal charges, which, perversely, gave him a boost in a poll among Republican-leaning voters.
But as the election cycle proceeds, his campaign must submit itself to the impartial and law-bound processes of election administration, and this is where, if the Constitution means anything, his run for the presidency must die.
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Secretaries of state and other chief election officials throughout the country have an unambiguous duty to uphold the law and refuse to admit Trump to the ballot. They will be under extraordinary pressure to acquiesce and avoid such a stance. But each election official who grants ballot access to Trump will have betrayed their oath and become complicit in the Trumpian obliteration of constitutional order.
Adopted after the Civil War to deal with officials in the former Confederacy, Section 3 of the 14th Amendment 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 or comfort to the enemies thereof.”
Last year, in the first known challenge under that clause in more than a century, the nonprofit advocacy group Free Speech For People filed a complaint with the North Carolina State Board of Elections to block former U.S. Rep. Madison Cawthorn from running for reelection.
The challenge became moot after Cawthorn lost his primary bid.
But a series of 14th Amendment challenges has since been lodged against seditious members of Congress and other elected officials. Couy Griffin, a former Republican county commissioner in Otero County, New Mexico, in September became the first elected official since 1869 to be barred from office based on the 14 Amendment’s insurrectionist disqualification clause. Griffin was part of the pro-Trump mob that stormed the Capitol on Jan. 6, 2021.
Crucially, District Court Judge Francis J. Mathew in the Griffin ruling found that “the January 6, 2021 attack on the United States Capitol” was “an ‘insurrection'” and that Griffin “‘engaged in’ that insurrection” under the disqualification clause. The New Mexico Supreme Court later upheld the ruling.
To bar Griffin from office but not Trump would be like disqualifying a rebel soldier but not Jefferson Davis. At least two federal court rulings from early last year provide legal support for disqualifying Trump under the 14th Amendment, noted Roger Parloff in Lawfare. “There is actually a disquietingly strong case at this point that Trump should be disqualified under Section 3 as a factual matter,” Parloff wrote.
The House committee investigating Jan. 6 significantly bolstered the case for disqualifying Trump when its final report, released in December, accused him of inciting an insurrection.
If Trump led an insurrection and he shouldn’t be allowed to hold office again, who has the authority to stop him? Secretaries of state.
Chief election officials throughout the country can determine whether to include Trump’s name on presidential ballots in their states. Some conservatives protest that only the federal government can exclude insurrectionists from the ballot, but that argument is exceedingly thin given how state officials enforce constitutional provisions all the time. They wouldn’t allow a 15-year-old on the presidential ballot. Likewise they shouldn’t allow an insurrectionist on the ballot. If election officials want to uphold their oath of office and serve their states faithfully, they must bar Trump from running. The Constitution demands it.
Jena Griswold, secretary of state of Colorado, chairs the Democratic Association of Secretaries of State. She has been one of the nation’s leading voices for protecting election security and denouncing election deniers. DASS was instrumental in resisting far-right secretary of state candidates in November.
“Extremism and election denialism are still corroding the United States,” Griswold said in February after she was reelected to lead DASS, according to Colorado Politics. “I look forward to the work that lies ahead to protect American democracy as we begin this next chapter.”
That work includes no greater imperative than blocking Trump from the ballot. If Griswold and other chief election officials fail to disqualify Trump, they will become accomplices in his crimes and vitiate whatever else they’ve done for democracy.
Some secretaries of state, perhaps many, are gaming this all out. They’ve no doubt considered that if they bar Trump from the ballot, he’ll sue, and the case would likely end up in the Trump-friendly U.S. Supreme Court. They’re also probably aware that lawsuits are coming if they don’t bar Trump. Disqualifying Trump would be an extraordinary move, an unprecedented rebuke of a man who has demonstrated a willingness and capacity to inspire mob violence.
But these legitimate concerns are superseded by a solemn duty to serve the people. They are outweighed by the tragedy a second Trump presidency would be for the country and the Constitution — neither under Trump would survive in a form that officials like Griswold have fought so hard to preserve.
But secretaries of state have the strength of law on their side, the faith of Americans at their back and the approval of history ahead. They must uphold the 14th Amendment and keep Trump off the ballot.
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