The 14th Amendment, dating back to the Civil War era, outlines in Section 3 the following provision: “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.”
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Even if an individual is deemed ineligible to hold office based on this section, the amendment specifies that Congress has the authority to overturn such a decision with a two-thirds majority vote.
Historically, this provision was predominantly utilized between its ratification in the aftermath of the Civil War and the 1872 enactment of the Amnesty Act, as detailed in a Congressional Research Service report.
What is Section 3 of the 14th Amendment?
The Colorado Supreme Court ruled on Tuesday that Former President Donald Trump is ineligible to be featured on the state's primary ballot next year, citing constitutional reasons. According to the judges, Trump cannot be included on the ballot due to the provisions outlined in Section 3 of the 14th Amendment of the United States Constitution.
In their ruling, the judges stated, "A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment of the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot."
How did the case come about?
In early September, multiple law firms and Citizens for Responsibility and Ethics in Washington (CREW) jointly filed a lawsuit on behalf of six voters in Colorado. The lawsuit sought to prevent Donald Trump from appearing on the state's 2024 election ballots, citing his involvement in the insurrection on January 6, 2021. CREW emphasized that Section 3 of the 14th Amendment, though infrequently tested in the last 150 years due to a lack of insurrections, was the basis for their legal action.
CREW highlighted its prior representation of New Mexico residents in the preceding year. In that case, they successfully sued to remove Couy Griffin, co-founder of Cowboys for Trump, from his elected position as Otero County commissioner, marking the only successful case brought under Section 3 since 1869.
Was Trump charged with insurrection?
The former president has not faced explicit charges of "insurrection" or "rebellion" in any of his criminal cases, which include the Washington, D.C., election interference case brought by special counsel Jack Smith. In this case, Trump is charged with conspiracy to defraud the U.S., conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. The trial for this case is scheduled for early March.
According to the Congressional Research Service (CRS) report, "Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary.
What happened before the state Supreme Court's ruling?
The decision of the Colorado Supreme Court marks a reversal of a previous lower court ruling. The lower court had concluded that Trump was involved in insurrection for inciting a riot on January 6, 2021. However, it held that presidents are not subject to Section 3 of the 14th Amendment since they are not deemed an "officer of the United States."
The interpretation of whether the president falls under the coverage of Section 3 has spurred some debate, primarily due to its lack of explicit mention of the president. The Congressional Research Service (CRS) report provides insight, suggesting that "it may be more likely that the office of the President is included as an office under the United States," and the historical context of Section 3's drafting implies that the president is indeed covered by its provisions.
What happens next?
Colorado's Supreme Court has temporarily postponed its decision until January 4, providing a window for additional appeals. Additionally, the court outlined that if the case advances to the U.S. Supreme Court before the mentioned date, the stay will persist, compelling Colorado to include Trump’s name on the primary ballot until further action is taken by the Supreme Court.
Should the ruling be upheld, the Colorado Republican Party signaled on Tuesday night its intention to withdraw from the primary system as a party and instead opt for the caucus system to nominate a candidate.
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Are there challenges in other states?
To date, the sole successful challenge has occurred in Colorado, but analogous endeavors have been initiated in more than a dozen states, including New Hampshire, Arizona, Michigan, and Florida.
In cases that are currently awaiting appeal or have been dismissed, the majority were not adjudicated based on Section 3 or the determination of whether Trump played a role in or endorsed an insurrection. Rather, many courts have dismissed these cases on grounds related to justiciability, questioning the eligibility of these cases to be decided.
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