WASHINGTON − The idea landed in legal and political circles with a big splash over the summer: Donald Trump had already blew his chance at another term because of his effort to overturn the 2020 election.
But in recent weeks the theory that a little-tested, post-Civil War provision in the 14th Amendment disqualifies the former president from taking another shot at the White House has been dealt a series of setbacks, with courts in four states knocking the idea down − at least when it comes to next year’s primary elections.
The latest decision arrived Friday from a Colorado court, which ruled that− the provision doesn’t cover presidents. Minnesota’s Supreme Court last week ruled that primary elections are “internal party” matters. A Michigan court on Tuesday said state election officials don’t have the power to resolve the question. A federal court in New Hampshire last month tossed a long-shot bid from a little-known GOP candidate who raised the same issue.
Is the fight about Trump and the 14th Amendment over?
So is the fight over the 14th Amendment effectively over? Not likely, experts say.
For starters, Trump’s critics focused heavily on other parts of Colorado District Judge Sarah Wallace’s decision late Friday − specifically her finding that Trump had engaged in an insurrection through incitement and that his remarks at a rally outside the White House were not protected by the First Amendment.
Colorado:Colorado court sides with Donald Trump in latest test of ‘insurrection’ claims
“It is significant that courts thus far have rejected the efforts to keep Trump off the presidential ballot next year,” said Michael Gerhardt, a professor at the University of North Carolina School of Law in Chapel Hill. But, Gerhardt said, the basis of Wallace’s ruling “is open to debate – and contrary to the best scholarship on the question – and will undoubtedly become a basis for appeal to higher courts.”
Gerhardt, the author of a new book titled the “Law of Presidential Impeachment,” said it “makes no constitutional sense” that the provision involved in the case would apply to all federal officials who support an insurrection except for the president.
“I don’t think the fight is over at all. I think everyone understands that only the Supreme Court can give us a final answer,” said Kermit Roosevelt, a professor at the University of Pennsylvania Carey Law School.
From that perspective, Roosevelt said, the Colorado decision could be well positioned for Supreme Court review because it presents a pure question of federal constitutional law: does the provision apply to presidents?
“It’s very easy to imagine Supreme Court hearing this case,” he said.
‘Another nail in the coffin’
Trump’s campaign for reelection certainly hopes the early losses will doom the 14th Amendment effort. Minutes after the Colorado ruling on Friday evening, a campaign spokesman described the decision as “another nail in the coffin” of the effort to remove Trump from the ballot.
“The American voter has a constitutional right to vote for the candidate of their choosing,” Steven Cheung said in a statement. “This right was correctly preserved in Colorado today and we urge the swift disposal of any and all remaining Democrat ballot challenges.”
But Derek Muller, a University of Notre Dame law professor who has closely followed the issue, said it’s too soon to declare the effort to knock Trump off the ballot over. That’s especially true in Colorado, he said, given how the judge decided the case.
Colorado judge keeps Trump on ballot despite ‘insurrection’
Wallace found that Trump had engaged in an insurrection when he encouraged his supporters to storm the Capitol on Jan. 6, 2021.
But Wallace ruled that section three of the 14th Amendment, which disqualifies an “officer of the United States” who engaged in insurrection from serving again, does not cover a president.
“The Colorado case is a perfect vehicle for appeal,” Muller said. “A trial judge held a week of hearings and made the factual conclusion that Trump engaged in insurrection. On appeal, a clean legal issue of whether the presidency is covered by section three is all that’s left.”
Muller said he believes there’s a good chance for the groups to succeed on appeal, but acknowledged uncertainties remain.
The group that filed the lawsuit, Citizens for Responsibility and Ethics in Washington, has already vowed to appeal.
“Today was not the end of this effort,” said the group’s president, Noah Bookbinder, “but another step along the way.”
What the 14th Amendment says about insurrection
The section of the 14th Amendment at issue in the cases, Section 3, says that no one can hold federal office who “having previously taken an oath, as a member of Congress, or as an officer of the United States…shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The clause at issue has only been used a handful of times since immediately after the Civil War. Trump’s lawyers had argued it was never meant to apply to the office of president, which is not mentioned in the text. They have also framed the legal effort as an attempt to take away from voters the right to choose a president.
Minnesota’s highest court ruled Nov. 8 that Trump should be allowed to appear on the state’s presidential primary ballot, though courts there may revisit the issue for the general election.
The Minnesota court, in a four-page order, said the state’s primary election was an “internal party election” and that winning that contest doesn’t necessarily place the nominee on the state’s general election ballot. There is no state law that bars a political party from nominating a candidate who may be ineligible to hold office, the court wrote.
A judge in Michigan, meanwhile, ruled Tuesday that Trump would appear on the ballot and wrote that questions about how to define an “insurrection” would be be better left to Congress than to courts.
“It takes the decision of whether there was a rebellion or insurrection and whether or not someone participated in it from the Congress, a body made up of elected representatives of the people of every state in the nation, and gives it to but one single judicial officer, a person who no matter how well intentioned, evenhanded, fair and learned, cannot in any manner or form possibly embody the represented qualities of every citizen of the nation-as does the House of Representatives and the Senate,” Michigan Judge James Robert Redford wrote.
Contributing: David Jackson