By Marjorie Cohn / Truthout
The lawsuit filed earlier this month by Citizens for Responsibility and Ethics in Washington (CREW) on behalf of six Colorado voters provides a template that can and will be used in other states to keep Donald Trump off the ballot in the primary and general presidential elections. Indeed a similar lawsuit filed September 12 in Minnesota by the progressive group Free Speech For People shows that the strategy laid out in the Colorado lawsuit is already starting to spread.
Like the Colorado lawsuit that was filed on September 6, the Minnesota suit, which was brought in the Minnesota Supreme Court, seeks to remove Trump from the state’s ballots based on Section 3 of the 14th Amendment, known as the “Disqualification Clause.” It forbids anyone who has sworn the oath of office and later “engaged in insurrection or rebellion” or given “aid or comfort to the enemies” of the United States from holding public office.
“The events of January 6, 2021 amounted to an insurrection or a rebellion under Section 3: a violent, coordinated effort to storm the Capitol to obstruct and prevent the Vice President of the United States and the United States Congress from fulfilling their constitutional roles by certifying President Biden’s victory, and to illegally extend then-President Trump’s tenure in office,” the Minnesota legal complaint says.
The Minnesota suit follows close on the heels of the CREW lawsuit in Colorado, which similarly argued that on January 6, 2021, Trump “incited, exacerbated, and otherwise engaged in a violent insurrection at the United States Capitol by a mob who believed they were following his orders, and refused to protect the Capitol or call off the mob for nearly three hours as the attack unfolded.”
This strategy for Trump’s disqualification relies on the oath Trump swore: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Since the oath says “Office” of the President of the United States, it follows that the presidency is a “public office” within the meaning of Section 3.
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The Colorado lawsuit asks the court to declare that Section 3 disqualifies Trump from appearing on any Colorado ballot as a candidate for federal or state office. It also urges the court to enjoin Colorado Secretary of State Jena Griswold from allowing Trump to access the presidential election ballots in Colorado.
A similar lawsuit filed September 12 in Minnesota by the progressive group Free Speech For People shows that the strategy laid out in the Colorado lawsuit is already starting to spread.
In similar fashion, the Minnesota lawsuit petitions the court to declare that Trump “is disqualified from holding the office of President of the United States pursuant to Section 3 of the Fourteenth Amendment to the Constitution of the United States,” and directs Minnesota Secretary of State Steve Simon “to exclude Donald J. Trump from the ballot for the March 5, 2024, presidential nomination primary,” and “from the ballot for the November 5, 2024, general election.”
The Minnesota lawsuit mirrors CREW’s strategy in its Colorado lawsuit — a strategy that groups in other states across the country are likely to copy in the coming weeks.
CREW’s Lawsuit Relies on an Article by Two Leading Conservative Law Professors
The Colorado suit relies on a 126-page scholarly article that will appear in the University of Pennsylvania Law Review next year. It was written by William Baude of the University of Chicago and Michael Stokes Paulsen from the University of St. Thomas, whom Michael Luttig and Laurence Tribe called “two of the most prominent conservative constitutional scholars in America, both affiliated with the Federalist Society.”
Using an originalist analysis, Baude and Paulsen characterized “the efforts to maintain Trump in office, notwithstanding his defeat, as an attempted political coup d’état.” They wrote, “The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment,” adding, “He is no longer eligible to the office of Presidency.”
CREW filed the lawsuit on behalf of four Republican voters and two unaffiliated voters, including prominent former Colorado politicians, who are “eligible electors.” That means they have “standing” under Colorado law to challenge the constitutional eligibility of Republican presidential candidates.
The 14th Amendment Was an Anti-Racist Measure; Trump’s Insurrection Was Racist at Its Core.
The 14th Amendment was ratified after the Civil War. Section 3 was included to prevent secessionists from once again holding government office after the southern states rejoined the Union. The January 6 insurrection succeeded “in delaying the peaceful transfer of power for the first time in our nation’s history, which is further than the Confederates ever got,” Free Speech For People legal director Ron Fein told the BBC.
CREW’s lawsuit documents Trump’s concerted campaign to overturn the 2020 election results culminating in the January 6 insurrection. The factual allegations are as follows:
Before the 2020 election, Donald Trump lays the groundwork to reject the election results if he loses and deploy political violence to stay in power.
After the 2020 election, President Trump refuses to admit defeat and inflames his supporters with the lie that the election was stolen from them.
President Trump leads a broad-based effort to pressure, coerce, and intimidate state and local officials to unlawfully overturn the 2020 election results.
President Trump oversees a scheme to send fake slates of presidential electors to Congress and pressures Vice President Pence to unlawfully obstruct the January 6th certification proceeding based on those fake electoral slates.
President Trump summons tens of thousands of enraged supporters, including violent extremists, to travel to Washington, D.C. for a “wild” protest on January 6th to “Stop the Steal.”
A violent mob summoned, incited, and aided by President Trump attacks the U.S. Capitol to stop the lawful transfer of presidential power.
The lawsuit says, “Racism and white supremacy — the same virulent ideologies that led to the Civil War and, in its wake, the Fourteenth Amendment — pervaded Trump’s insurrection and the movement surrounding it.” Leading up to January 6th, Trump and his allies made false claims of election fraud about cities that had large numbers of Black people, targeting Detroit, Atlanta, Milwaukee and Philadelphia, the suit notes.
The Minnesota lawsuit mirrors CREW’s strategy in its Colorado lawsuit — a strategy that groups in other states across the country are likely to copy in the coming weeks.
“They sought to coerce and intimidate officials in those jurisdictions to invalidate the votes of millions of Black Americans,” the lawsuit adds. Their false accusations of ballot tampering by Black election workers led to “threats of lynchings and other racialized violence.”
Moreover, on January 6th, “neo-Confederates and neo-Nazis were among the first in Trump’s mob to breach the Capitol building, where they terrorized Black police officers with racial slurs and jabbed one such officer with a Confederate flag — a symbol of white supremacy and another failed insurrection against the United States,” the suit reads.
In addition, “President Trump’s mob went on to violently storm and seize the United States Capitol, a feat even the Confederacy never achieved during the Civil War,” CREWS’s lawsuit says. The mob “forced Vice President Pence and Members of Congress to flee for their lives and halt their constitutional duties.” For the first time in U.S. history, the attack disrupted the peaceful transfer of presidential power.
Election Officials in Other States Are Considering Using Article 3 to Keep Trump Off the Ballot
CREW selected Colorado for its first lawsuit because the state law permits ballot challenges to go directly to court. The group intends to file similar suits in other states.
Secretary of State Griswold, a Democrat, responded to CREW’s lawsuit by saying, “I look forward to the Colorado Court’s substantive resolution of the issues, and am hopeful that this case will provide guidance to election officials on Trump’s eligibility as a candidate for office.”
Last year, CREW used Section 3 to successfully block a New Mexico county commissioner who had participated in the January 6 insurrection from holding public office.
On August 30, two pro-democracy groups — Free Speech For People and Mi Familia Vota Education Fund — wrote to the secretaries of state in New Hampshire, New Mexico, Florida and Ohio, as well as members of the Wisconsin Elections Commission, asking them to keep Trump’s name off the ballot.
From April through July 2023, the two groups wrote similar letters to election officials in 10 other states, including Colorado, California, Nevada, Oregon, Massachusetts, Michigan, New York, Georgia, North Carolina and Pennsylvania.
Michigan Secretary of State Jocelyn Benson (a Democrat) and New Hampshire’s secretary of state and attorney general (both Republicans) are reportedly reviewingthe legal issues involved. Benson told MSNBC that she was “taking it seriously” and planned to confer with her colleagues in Pennsylvania and Georgia.
And the lawsuit filed September 12 in Minnesota by Free Speech For People further stokes the momentum of the nationwide push to use the 14th Amendment to remove Trump from the ballot.
No Criminal Conviction Is Necessary to Trigger the Disqualification Clause
Luttig, a leading conservative former judge, and Harvard emeritus law professor Tribe co-authored an August 19 article in The Atlantic, which CREW cited in its lawsuit. Luttig and Tribe characterize Article 3 as “a protection against the dissolution of the republic by a treasonous president.”
No criminal conviction is required to trigger the operation of Article 3. Luttig and Tribe call the disqualification automatic, writing that “a conviction would be beside the point” because Section 3 “operates independently of any … criminal proceedings and . . . impeachment proceedings and of congressional legislation.”
The 91 criminal charges Trump is now facing are separate issues altogether from his ineligibility to hold office under the 14th Amendment.
Trump’s efforts to overturn the 2020 election and the “resulting attack on the U.S. Capitol,” Luttig and Tribe write, “place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again.”
The 91 criminal charges Trump is now facing are separate issues altogether from his ineligibility to hold office under the 14th Amendment.
“While the U.S. Justice Department, along with state and local authorities, must hold Donald Trump accountable for all crimes that he has committed, secretaries of state and chief election officials across the country must carry out their responsibility to follow the mandate of the Constitution and the insurrectionist disqualification clause and bar Trump from any future ballot,” said John Bonifaz, president of Free Speech For People.
“Criminal prosecutions will establish Trump’s liability under the law,” Bonifaz added. “But the enforcement of Section 3 of the 14th Amendment against Trump will ensure that our republic is protected and that this insurrectionist-in-chief is forever disqualified from holding any future public office.”
After the Colorado lawsuit was filed, Trump wrote on Truth Social that “it is just another ‘trick’ being used by the Radical Left Communists, Marxists, and Fascists, to again steal an Election.”
Will the Supreme Court Have the Courage and Intellectual Honesty to Follow the Constitution?
If one of 50 state election officials finds Trump ineligible to appear on the ballot, and a federal judge or state supreme court upholds Trump’s disqualification, the case will end up in the Supreme Court, “where it will in turn test the judiciary’s ability to disentangle constitutional interpretation from political temptation,” in the words of Luttig and Tribe.
Mindful of the actions of Trump’s minions, Luttig and Tribe warn that the process “could give rise to momentary social unrest and even violence.”
It remains to be seen whether Gorsuch — and four other members of the court — will have the courage and intellectual honesty to defy Trump.
All bets are off once the issue reaches the Supreme Court. In 2012, when he was a circuit court judge, Neil Gorsuch wrote in Hassan v. Colorado that, “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”
It remains to be seen whether Gorsuch — and four other members of the court — will have the courage and intellectual honesty to defy Trump. Or whether five of them will inject their right-wing politics into a presidential election as was done in Bush v. Gore, in which five members of the court handed the presidency to George W. Bush. If Al Gore had been allowed to become president, we may well have made serious inroads in curbing climate change. Stay tuned.
Marjorie Cohn
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, the bureau of the International Association of Democratic Lawyers, and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.