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'Engaged in Insurrection': Trump, SCOTUS, and the 14th Amendment, Explained

The U.S. Supreme Court may need to decide whether the Amendment, left largely unclarified since the Civil War, applies to the former president.

Published Dec 29, 2023

 (SAUL LOEB/AFP via Getty Images)
Image Via SAUL LOEB/AFP via Getty Images

On Dec. 19, 2023, the State Supreme Court of Colorado ruled that former U.S. President Donald Trump was ineligible to appear on the primary ballot for the 2024 presidential election. Maine followed suit a week or so later, when that state's secretary of state ruled on excluding Trump from primary ballots, as well. During that same period, several states — California, Michigan, and Minnesota — explicitly ruled or stated that Trump could not be excluded from primary ballots.

While individual states have authority over their election procedures, and these procedures differ between states, Trump's potential disqualification from primary ballots stems from a clause in the U.S. Constitution enacted after the Civil War and intended to prevent former Confederates from holding office. Several states, as well as the Trump campaign, have petitioned the U.S. Supreme Court to rule on the matter.

Here, Snopes covers the central elements of the debate and its potential future before the Supreme Court.

How Could 14th Amendment Be Used To Bar Trump From Appearing on Ballots?

Colorado and Maine both cite what is known as the Disqualification Clause (Section Three of the 14th Amendment) as their basis for removing Trump from their state's primary ballots. Section Three of the 14th Amendment stipulates:

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.

As Snopes has previously explained, there are two basic requirements for disqualification that stem from this clause. The first is that the person has "previously taken an oath" at any state or federal level "to support the Constitution of the United States." The second requirement is that the person had "engaged in insurrection or rebellion against" the Constitution or had "given aid or comfort to the enemies thereof."

In Colorado's Dec. 19, 2023, ruling, which was a response to multiple groups challenging the former president's inclusion on a primary ballot, the Colorado Supreme Court stated the 14th Amendment disqualifies Trump from running for office and, as a result, it would be a violation of state election law for him to appear on a primary ballot:

A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to 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.

In a 34-page ruling issued on Dec. 28, 2023, Shenna Bellows, Maine's secretary of state, argued that Trump's "primary petition" to run for office in Maine was "invalid" because he falsely stated to be qualified to hold office on his campaign declaration:

Mr. Trump's primary petition is invalid. Specifically, I find that the declaration on his candidate consent form is false because he is not qualified to hold the office of the President under Section Three of the Fourteenth Amendment.

“I am mindful that no secretary of state has ever deprived a presidential candidate of ballot access based on Section 3 of the 14th Amendment," Bellows wrote. "I am also mindful, however, that no presidential candidate has ever before engaged in insurrection." Under Maine state law, the secretary of state ultimately decides the viability of a challenge to someone's inclusion on a ballot.

What Constitutes an Insurrection?

At the heart of these cases is the vaguely defined concept of engaging in or supporting an insurrection. While the Jan. 6, 2021, attack on the U.S Capitol has previously been used to keep state-level political officials off a ballot or removed from office, the U.S. Supreme Court has yet to rule on the amendment's applicability to Trump, or to the events of Jan. 6. This fact is at the heart of challenges to Colorado and Maine's rulings.

In response to the Colorado ruling, the Colorado Republican Party asked the U.S. Supreme Court to rule on three questions regarding the disqualification clause. The first considers Trump's actions specifically, while the other two consider the level of authority states have in making disqualifications more generally:

1. Whether the President falls within the list of officials subject to the disqualification provision of Section Three of the Fourteenth Amendment?

2. Whether Section Three of the Fourteenth Amendment is self-executing to the extent of allowing states to remove candidates from the ballot in the absence of any Congressional action authorizing such process?

3. Whether the denial to a political party of its ability to choose the candidate of its choice in a presidential primary and general election violates that party’s First Amendment Right of Association?

The Trump campaign has stated that it intends to appeal the Maine ruling to the U.S. Supreme Court, as well. Both Maine and Colorado hold their primaries on Super Tuesday — March 5, 2024.

Trump Hasn't Even Been Convicted, How Could This Be Applicable To Him?

As Snopes has previously explained, precedent suggests that someone need not be convicted of a crime to be deemed ineligible to run for office under the Disqualification Clause. While Trump is facing criminal charges related to his actions in the aftermath of the 2020 election and the Jan. 6 insurrection, he has not been convicted of any of these crimes at the time of this reporting.

Based on past disqualifications under the 14th amendment, that fact has little bearing on the Disqualification Clause. Of the eight people who have been disqualified under this part of the Constitution, at least five were not convicted of any crime.

Past disqualifications also suggest that Jan 6. could constitute an insurrection. One of those eight disqualified people was Cowboys For Trump founder Couy Griffin, who was disqualified from holding state office in New Mexico in 2022 for participation in the events of Jan. 6.

How Might The Supreme Court Settle The Issue?

A U.S. Supreme Court ruling on the first question posed by the Colorado Republican party — or any other single state — could have widespread, national effects. As described by The New York Times, "A ruling that Mr. Trump’s conduct cannot be construed as a violation of the 14th Amendment would effectively shut down challenges pending in several states."

There is no guarantee, however, that such a ruling in these or any other cases would result in such a broad impact, or that a ruling on these primary election issues would hold relevance in the general election. "A narrower ruling on the Colorado case could allow Mr. Trump to remain on the state’s primary ballot, while giving lawyers challenging his eligibility a chance to argue that he should be kept off the general election ballot," the Times explained.

What About Other States?

Maine and Colorado are not the only states to have weighed in on Trump's qualification to hold office under the 14th Amendment to the Constitution. At the time of this reporting, two states saw failed efforts to disqualify Trump: Michigan and Minnesota.

California, without legal challenge, announced that it could not disqualify Trump from the ballot under state law. One other state, Oregon, currently has a case challenging Trump's qualification to run for office. That case has yet to be decided, but is expected to be reviewed by that state's Supreme Court.

As for the flagship Colorado case, the U.S. Supreme Court must respond to the Colorado GOP by Jan. 26, 2024, according to the docket.

Sources

2023 CO 63. https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf.

COLORADO REPUBLICAN STATE CENTRAL COMMITTEE, Petitioner, v. NORMA ANDERSON, ET AL., Respondents. United States Supreme Court, https://www.supremecourt.gov/DocketPDF/23/23-696/294416/20231227184621636_Colorado-Republican-State-Central-Committee-v.-Anderson-Cert-Petition%20PDFA.pdf.

DocumentCloud. https://www.documentcloud.org/documents/24245391-decision-in-challenge-to-trump-presidential-primary-petitions?responsive=1&title=1. Accessed 29 Dec. 2023.

Marley, Patrick, et al. “Here Are the Key States Where Trump’s Ballot Status Is Being Challenged.” Washington Post, 29 Dec. 2023. www.washingtonpost.com, https://www.washingtonpost.com/politics/2023/12/28/here-are-key-states-where-trumps-ballot-status-is-being-challenged/.

Russell, Jenna, et al. “Maine Joins Colorado in Finding Trump Ineligible for Primary Ballot.” The New York Times, 29 Dec. 2023. NYTimes.com, https://www.nytimes.com/2023/12/28/us/maine-trump-ballot.html.

Section 3, 14th Amendment. https://constitution.congress.gov/browse/amendment-14/section-3/#.

The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment. Congressional Research Service, Sept. 2022, https://crsreports.congress.gov/product/pdf/LSB/LSB10569.

“The Precedent for 14th Amendment Disqualification.” CREW | Citizens for Responsibility and Ethics in Washington, https://www.citizensforethics.org/reports-investigations/crew-reports/past-14th-amendment-disqualifications/. Accessed 29 Dec. 2023.

Alex Kasprak is an investigative journalist and science writer reporting on scientific misinformation, online fraud, and financial crime.