‘Uncharted territory’: elections officials weigh Trump’s presidency eligibility
After defending the integrity of US elections from an onslaught of threats over the last several years, secretaries of state across the US are now turning to a new high-stakes question: is Donald Trump eligible to run for president?
Several secretaries are already working with attorneys general in their states and studying whether Trump is disqualified under a provision of the 14th amendment that bars anyone from holding public office if they have previously taken an oath to the United States and then “engaged in insurrection or rebellion against the same”. That language clearly disqualifies Trump from running in 2024, William Baude and Michael Stokes Paulsen, two prominent conservative scholars, concluded in a lengthy forthcoming law review article. “If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so,” they write in the article.
A flurry of challenges to Trump’s candidacy are expected – one was filed in Colorado on Wednesday – but the legal issues at play are largely untested. Never before has the provision been used to try to disqualify a presidential candidate from office and the issue is likely to quickly come to a head as soon as officials make their official certifications about who can appear on primary ballots. Secretaries are studying who has the authority to remove Trump from the ballot and what process needs to occur before they do so. They also recognize that the issue is likely to be ultimately settled by the courts, including the US supreme court.
Jocelyn Benson, a Democrat in her second term as Michigan’s secretary of state, said she had spoken with another secretary of state about the 14th amendment issue “nearly every day”.
“The north star for me is always: ‘What is the law? What does the constitution require?’ To keep politics and partisan considerations out of it. And simply just look at this from a sense of ‘what does the 14th amendment say?’ We’re in unprecedented, uncharted territory,” she said.
Among the uncertain questions is the proper timing for the challenges. It’s theoretically possible that a challenge to Trump’s ability to hold office could continue even if he were to win the 2024 election.
“There are a lot of ambiguities and unknowns still yet to play out,” Benson added. “Even if the former president does get elected in the fall of ’24, it could re-emerge then after an election. So we’re also preparing for a lack of finality of this and for it to be an issue throughout the cycle.”
Several secretaries are studying how state law might intersect with the disqualification language in the 14th amendment. In Arizona, for example, the state supreme court ruled against disqualifying three candidates for their involvement in efforts to overturn the election, saying state law did not allow for the use of the 14th amendment as the basis for a challenge. Unlike Trump, however, none of those three officials were charged with a crime.
“The state of the law in Arizona leans in one direction; the plain language of the constitution, including the supremacy clause, leans in a different direction,” said Adrian Fontes, a Democrat who was elected Arizona’s secretary of state last year.