Rarely do legal scholars compel government officials to embark on an unprecedented and hugely consequential course of action, but that is precisely what William Baude and Michael Stokes Paulsen, authors of a law review article regarding Section 3 of the 14th Amendment, and the intellectual powerhouse duo of former judge J. Michael Luttig and Laurence H. Tribe have done.
In a remarkably short time, they have driven home the implications of Section 3: that all officials with a role in the presidential election process must consider disqualifying former president Donald Trump from the 2024 ballot if they find he “either ‘engaged in insurrection or rebellion’ against the Constitution or gave ‘aid and comfort to the enemies’ of that Constitution.”
Secretaries of state certainly have heard them loud and clear. Michigan Secretary of State Jocelyn Benson (D), appearing on MSNBC (where I am a contributor), “emphasized her plan to consider the issue exclusively based on applicable law, without partisan considerations, expressing concern that this issue could become weaponized in future elections,” as legal scholar Edward B. Foley noted. Benson also indicated she would be conferring with secretaries of state in Georgia, Nevada and Pennsylvania. But she smartly recognized that whatever she and other secretaries decide, the issue will undoubtedly travel to the Supreme Court for a final determination.
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Likewise, New Hampshire Secretary of State David Scanlan (R) said recently, “When somebody makes a reasoned argument about what those provisions mean, I feel an obligation to at least listen to them.” He added, “A decision of that magnitude that’s a decision of deciding that somebody is not qualified to run, a person, is extraordinary. And it really has to be treated with that degree of importance.”
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That attitude serves as a model for not only secretaries of state but also all other officials (e.g., state electors, governors) who have a role in presidential qualification and certification. The first step must be a recognition that the 14th Amendment is relevant and demands fidelity from all officials who take an oath to defend the Constitution. As Luttig and Tribe wrote, “Section 3 is no anachronism or relic from the past; rather, it applies with the same force and effect today as it did the day it was ratified — as does every other provision, clause, and word of the Constitution that has not been repealed or revised by amendment.”
Now, secretaries of state and other officials must grapple with how to make the determination. Does state law require they obtain a ruling from the state attorney general or other legal official? Do they conduct open hearings to provide transparency and educate voters? There are no easy answers because we have never witnessed the accused instigator of an attempted insurrection run for president. And though Trump is not yet the nominee, it would be reckless not to prepare for the strong likelihood that Republican primary voters will nominate their cult leader.
And that, in turn, raises a critical point: Primary voters, who might be contemptuous of the demands of democracy, should, at the very least, understand that they risk nominating someone who might not be on the ballot in one or more states. They could gamble that the hyperpartisan Supreme Court will ride to Trump’s rescue, hypocritically (for self-described originalists) ignoring the plain text of the amendment. Do primary voters want to run that risk?
And let’s also remember that all of this — the Trump reelection bid, the threat of a lawless president returning to the White House, the perilous state of the rule of law — could have been avoided had Senate Republicans, including Sen. Mitch McConnell (R-Ky.), done their duty and convicted Trump in the impeachment trial after Jan. 6, 2021, and barred him from holding office.
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And that brings us to the federal courts. There is federal precedent that a candidate should not be excluded (1869’s In re Griffin). However, Baude and Paulsen utterly demolished the reasoning in that case. Chief Justice Salmon Chase (sitting as a circuit court judge in what would be the 4th Circuit) invited ridicule because “his core argument was that surely Section Three cannot mean what it says: It would have bad consequences, can’t possibly have been intended by the ratifiers, and would violate the spirit of the Constitution.” Baude and Paulsen, in their exacting analysis and historical examination, concluded that “these arguments are bad ones.” They found:
Now, should that near-certain legal outcome influence secretaries of state? Ideally not, for they took an oath to defend the Constitution and must fulfill their solemn obligations, even though they know the Supreme Court might overrule their well-reasoned decision to keep Trump off the ballot.
It is asking a lot from elected officials to take a politically controversial position knowing full well a decision to follow the dictates of Section 3 very likely will be reversed. But public office and fidelity to the Constitution are not for the fainthearted. Any public official seriously wrestling with this issue deserves praise and support — just as those MAGA voters placing them and the country in this untenable position deserve our scorn.
In a remarkably short time, they have driven home the implications of Section 3: that all officials with a role in the presidential election process must consider disqualifying former president Donald Trump from the 2024 ballot if they find he “either ‘engaged in insurrection or rebellion’ against the Constitution or gave ‘aid and comfort to the enemies’ of that Constitution.”
Secretaries of state certainly have heard them loud and clear. Michigan Secretary of State Jocelyn Benson (D), appearing on MSNBC (where I am a contributor), “emphasized her plan to consider the issue exclusively based on applicable law, without partisan considerations, expressing concern that this issue could become weaponized in future elections,” as legal scholar Edward B. Foley noted. Benson also indicated she would be conferring with secretaries of state in Georgia, Nevada and Pennsylvania. But she smartly recognized that whatever she and other secretaries decide, the issue will undoubtedly travel to the Supreme Court for a final determination.
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Likewise, New Hampshire Secretary of State David Scanlan (R) said recently, “When somebody makes a reasoned argument about what those provisions mean, I feel an obligation to at least listen to them.” He added, “A decision of that magnitude that’s a decision of deciding that somebody is not qualified to run, a person, is extraordinary. And it really has to be treated with that degree of importance.”
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That attitude serves as a model for not only secretaries of state but also all other officials (e.g., state electors, governors) who have a role in presidential qualification and certification. The first step must be a recognition that the 14th Amendment is relevant and demands fidelity from all officials who take an oath to defend the Constitution. As Luttig and Tribe wrote, “Section 3 is no anachronism or relic from the past; rather, it applies with the same force and effect today as it did the day it was ratified — as does every other provision, clause, and word of the Constitution that has not been repealed or revised by amendment.”
Now, secretaries of state and other officials must grapple with how to make the determination. Does state law require they obtain a ruling from the state attorney general or other legal official? Do they conduct open hearings to provide transparency and educate voters? There are no easy answers because we have never witnessed the accused instigator of an attempted insurrection run for president. And though Trump is not yet the nominee, it would be reckless not to prepare for the strong likelihood that Republican primary voters will nominate their cult leader.
And that, in turn, raises a critical point: Primary voters, who might be contemptuous of the demands of democracy, should, at the very least, understand that they risk nominating someone who might not be on the ballot in one or more states. They could gamble that the hyperpartisan Supreme Court will ride to Trump’s rescue, hypocritically (for self-described originalists) ignoring the plain text of the amendment. Do primary voters want to run that risk?
And let’s also remember that all of this — the Trump reelection bid, the threat of a lawless president returning to the White House, the perilous state of the rule of law — could have been avoided had Senate Republicans, including Sen. Mitch McConnell (R-Ky.), done their duty and convicted Trump in the impeachment trial after Jan. 6, 2021, and barred him from holding office.
Press Enter to skip to end of carousel
And that brings us to the federal courts. There is federal precedent that a candidate should not be excluded (1869’s In re Griffin). However, Baude and Paulsen utterly demolished the reasoning in that case. Chief Justice Salmon Chase (sitting as a circuit court judge in what would be the 4th Circuit) invited ridicule because “his core argument was that surely Section Three cannot mean what it says: It would have bad consequences, can’t possibly have been intended by the ratifiers, and would violate the spirit of the Constitution.” Baude and Paulsen, in their exacting analysis and historical examination, concluded that “these arguments are bad ones.” They found:
Whatever lower courts decide, the issue inevitably winds up at the Supreme Court, with a right-wing majority that has cherry-picked precedent, flirted with but rejected radical constitutional theories, invited an avalanche of criticism over ethics and recusal practices, and routinely flaunted its angry hyper-partisanship. Though the language of Section 3 could not be clearer, most scholars find it nearly impossible to imagine this Supreme Court would deprive Trump and his angry horde of supporters a chance to return him to power.
Now, should that near-certain legal outcome influence secretaries of state? Ideally not, for they took an oath to defend the Constitution and must fulfill their solemn obligations, even though they know the Supreme Court might overrule their well-reasoned decision to keep Trump off the ballot.
It is asking a lot from elected officials to take a politically controversial position knowing full well a decision to follow the dictates of Section 3 very likely will be reversed. But public office and fidelity to the Constitution are not for the fainthearted. Any public official seriously wrestling with this issue deserves praise and support — just as those MAGA voters placing them and the country in this untenable position deserve our scorn.
