'As guilty as Jefferson Davis': How keeping Trump off the ballot could be a 'convoluted' process

03 September 2023

There is an ongoing debate inside legal circles over whether the "Disqualification from Holding Office" clause in Section 3 of the 14th Amendment to the United States Constitution forbids ex-President Donald Trump from being elected president again in 2024 because of his alleged involvement in the January 6th plot to remain in power after he lost the 2020 election to President Joe Biden.

The document states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.

Over the weekend, WRAL's Will Doran assessed the arguments regarding keeping Trump on the ballot.

POLL: Should Trump be allowed to hold office again?

"Opponents are hopeful — and supporters fearful — that a variety of criminal charges facing Trump will invalidate his campaign before November 2024. But there's a growing push by some Trump foes to instead use a novel legal strategy based on an obscure part of the US Constitution that has its roots in the Civil War," Doran wrote.

"It's a strategy that recently got its first test in a century in North Carolina," Doran said. "A section of the 14th Amendment disqualifies anti-government insurrectionists from holding federal office. And some opponents say that should disqualify Trump because of actions leading up to the Jan. 6, 2021, attack on the US Capitol, which some political activists and legal experts argue fits the definition of an insurrection."

Former North Carolina Supreme Court Judge Bob Orr, a Republican, asserted that the 14th Amendment provides "the best way to keep Trump off the ballot." Trump, Orr opined, is "just as guilty as Jefferson Davis," the deposed vice president of the Confederacy whom Doran recalled "was banned from returning to US politics after the Civil War due to the 14th Amendment."

Doran noted that although the "anti-insurrectionist rule has rarely been tested in modern American history," the 14th Amendment theory was tested in the 2022 midterm cycle when voters launched a campaign to prevent then-Representative Madison Cawthorn (R-North Carolina) from seeking reelection. Congresswoman Marjorie Taylor Greene (R-Georgia) faced a similar effort to keep her off the ballot. Both lawmakers openly backed Trump's ill-fated conspiracy to steal the presidency.

Meanwhile, Doran continued, "Orr hopes the argument can be extended to stop Trump, he also acknowledged it's much harder to stop a presidential candidate, who's on the ballot in 50 states, than it is to get involved in a single US House race. And that's not even considering the fact that people's votes in presidential elections don't actually go to the candidate they vote for. Rather, they are used to guide how the state's members of the Electoral College should cast their own votes. Plus, the rules for how closely electors have to pay attention to their state's popular vote varies from state to state."

Because of "this kind of convoluted national process," Orr posited, "The question becomes, do you have to challenge him in all 50 states? Or do you just do it once, and then let the Supreme Court decide, or what?”

View Doran's analysis at this link.

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