Can Donald Trump Really Be Barred from the 2024 Ballot?

By David Corn  September 1, 2023

At a campaign rally in Waco, Texas, on March 25, 2023, Donald Trump pays tribute to imprisoned January 6 rioters. Evan Vucci/AP

There’s a magic spell that can rid the nation of the Trump curse, a miracle cure for the Trump infection, a silver bullet…well, we don’t want to use such a metaphor. Maybe a bucket of water that can destroy the wicked witch. And you probably have heard pundits or social media posters discuss this shortcut to de-Trumpifying American politics. It’s disqualification.

Section 3 of the 14th Amendment of our cherished Constitution plainly states that no person can hold any federal or state office if he or she has previously taken an oath as a government official to support the Constitution and has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Pretty straightforward, right? You swear an oath to defend the Constitution, you assist an insurrection, and you don’t get to serve in the government. Seems fair.

Donald Trump supported the insurrectionist January 6 riot and plotted to subvert the constitutional order. So—poof!—he’s not qualified to serve as president. Just as if he failed to meet the only three requirements in the Constitution for jobseekers interested in the top position: be 35 or older, a “natural-born” citizen, and a resident of the United States for at least 14 years.

The disqualification solution has received hefty support in recent weeks. Two conservative law professors—William Baude of University of Chicago Law School and Michael Stokes Paulsen of University of St. Thomas Law School—both Federalist Society members!—wrote a long article for the University of Pennsylvania Law Review that concludes this provision of the Constitution “disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.” Their paper notes, “Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications.”

In The Atlantic, the odd couple of J. Michael Luttig, a former federal judge and prominent conservative jurist, and Laurence Tribe, the liberal-minded Harvard constitutional law professor, endorsed this paper and its conclusion. The headline for their piece summed up the case: “The Constitution Prohibits Trump From Ever Being President Again.” The pair added, “The only question is whether American citizens today can uphold that commitment.”

And disqualification is not just an academic exercise. In New Hampshire, Attorney General John Formella and Secretary of State David Scanlan issued a joint statement this week reporting they were examining the matter and that Formella's office is "reviewing the legal issues involved" at Scanlan’s request. Formella and Scanlan are both Republicans. A lawyer in Palm Beach county filed a lawsuit in federal court to disqualify Trump from the 2024 ballot, citing this constitutional clause. In Michigan, an activist has gone to court to urge Secretary of State Jocelyn Benson, a Democrat, to invalidate Trump’s candidacy.

Call it disqualification fever.

Can this actually work? Such a move would be unprecedented. But there are many Trump actions that can be cited as disqualifying. He urged on the rioters. He took no steps at first to stop the attack and even praised these domestic terrorists. He has since hailed the 1/6 marauders and promised pardons. He has even participated in and promoted a self-celebrating music video made by several of the imprisoned insurrectionists. At the first rally of his 2024 campaign, Trump played the song and declared, “Our people love those people…These are people that shouldn’t have been there [in prison].” Remember, the relevant provision says that providing “aid or comfort to the enemies” of the Constitution is enough to earn someone a ban from federal office. Hasn’t Trump done that?

One could even argue that Trump should have been disqualified for the 2020 election, given that he aided and abetted the Russian attack on American democracy during the 2016 election. But that’s another story.

Back to the January 6 disqualification. Baude and Paulson write,

The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. 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.

Okay. But who’s going to do anything about this? Will any secretary of state take the step of bouncing Trump from the ballot—that is, cancel the leader of one of the two major political parties, a politician who won the votes of 74 million Americans in 2020? This not only would seem audacious, but it could be considered anti-democratic, with one person assuming and exercising too much power.

Luttig and Tribe contend that such a step—justified in their view—would, no doubt, provoke a court challenge that would probably reach the Supreme Court. Consequently, this decision would not reside entirely in the hands of a single state official. Nevertheless, that still entails a small number of folks determining the outcome of an election. There were plenty of complaints about five justices of the Supreme Court deciding the 2000 election in favor of George W. Bush. And this process would likely involve fewer deciders than those involved in the criminal prosecutions of Trump. (I’m thinking of all the grand jurors and trial jurors.)

I wonder if this move—reasonable on points—has too much of a gimmicky feel to it. Disqualification would certainly provoke outrage among a large segment of the population and be viewed by them as an illegitimate, democracy-denying power-grab. Luttig and Tribe recognize this, noting an attempt to disqualify Trump could “give rise to momentary social unrest and even violence.” (But, they add, “so could the failure to engage in this constitutionally mandated process.”)

I understand that abiding by the Constitution and protecting the fundamental instruction manual for our democracy means abiding by the Constitution and protecting the fundamental instruction manual for our democracy. Yet—to be a devil’s advocate—might disqualification provoke further crisis within our already fragile democracy? It will become the new front in our rancorous politics. Plenty of legal experts, constitutional scholars, and right-wing commentators will attempt to poke holes in the arguments presented by the disqualificationists. State officials will bicker and reach opposing conclusions. Federal courts will render differing judgments. Trump could be tossed off the ballots in some states, but not others. (When activists in Georgia last year tried to disqualify Rep. Marjorie Taylor Greene, citing Section 3 of the 14th Amendment, and prevent her from running for reelection, an administrative law judge ruled against them.) The disqualification debate will not escape the tribalized politics of the moment. It likely will exacerbate them.

Perhaps that is unavoidable. The case that a secretary of state can strike Trump from the presidential ballot is a strong one. But is it the best option? Successful disqualifications in a few key states would render Trump’s candidacy moot…and turn him into a martyr supported by a MAGA movement more enraged than usual. It’s not hard to imagine assorted nightmare scenarios. Such as: Trump is the GOP nominee, though disqualified in a handful of swing states, and another GOP candidate or Trump stand-in wins those states—and, ultimately, neither Biden, Trump, nor the other candidate bags a majority of electoral votes. The race then would be decided by the House, in which there is a majority of Republican-controlled state delegations. (In this situation, the House votes not by members but by state delegations.) Guess what happens.

I’m not proposing that the disqualificationists stand down. (Or stand back and stand by.) I’m just pondering what disqualification will wreak. What might be the unintended consequences? The best way to disinfect American politics in the short run would be for the citizenry to once more soundly reject Trump, the narcissistic, demagogic authoritarian who threatens American democracy. Yet, as I’ve written before, the greater threat to the nation is the tens of millions of Americans who embrace his politics of hatred, grievance, and conspiracy theory. Disqualifying Trump will not disqualify them. It’s not one man who must be thwarted; it’s a political force. True, bouncing Trump could be a good start. But saving America requires more than that.

Got anything to say about this item—or anything else? Email me at ourland@motherjones.com

American Psychosis at a Discount

Dumbass Comment of the Week

Sometimes the question I have is this: Are certain politicians dumb, or do they think their audience is dumb? Days ago, Rep. Byron Donalds (R-Fla.) tweeted: “REMINDER: Joe Biden and his party shuttered schools, forced masks on their faces, and put vaccines in their arms, all while holding our children back in ways that will have long-lasting impacts on their educational future.” Excuse me, but who was president when Covid struck and schools were closed and mask-wearing and social distancing rules implemented? Oh yeah, that Trump guy. Trump also fast-tracked the program to “put vaccines” in our arms. On the Social Media Site Formerly Known as Twitter, tweeters (I can’t call them Xers) pounced on Donalds’ post and pointed out these obvious facts.

Back to the query above: Was Donalds too stupid to remember this recent history, or did he believe his right-wing base was too ignorant to know he was slinging disinformation?

Fox host Jesse Watters—a Bill O’Reilly/Tucker Carlson wannabe—has a really hard time not making racist remarks. After Trump was arraigned in Fulton County, Georgia, for allegedly trying to subvert American democracy, and his mugshot was released by the sheriff’s department, Watters insisted that Trump’s standing as an indicted racketeer would win him votes within the Black community. That is, Black people want to vote for thugs. And who’s an expert on this trend? Apparently, Watters’ garbage man. As Watters put it, “The mugshot has breathed new life into the Trump campaign and broadened his appeal to Black Americans… Today my garbage man told me he’s buying mugshot tee shirts for everyone he knows this Christmas.”

Odds that Watters’ garbage man said this? Odds that Watters knows his garbage man? Even if this conversation occurred, Watters was two-ferring, suggesting his presumably Black garbage man speaks for that community and promoting the notion that Black people identify with alleged criminals. Yeah, they really stuck by Richard Nixon.

Also demonstrating racist ignorance was GOP presidential candidate Vivek Ramaswamy. During a CNN interview, he groused, “We’ve created such a racialized culture in this country in the last several years.”

Last several years? Slavery and Jim Crow might have had something to do with the racialized culture of the United States.

I know that I just wrote about Tucker Carlson and his bottomless cynicism, but the judges insisted on handing this week’s prize to the ex-Fox-er for a stupid remark he made while he was recently in Hungary sucking up to its leader, Viktor Orbán. Addressing a crowd of Hungarians at an outdoor event, Carlson railed against State Department officials and other critics of Orbán’s authoritarian regime:

They hate Hungary, and they hate it not because what’s it’s done but because of what it is. It's a Christian country. And they hate that. And that’s the truth. And nobody wants to say it, but it's true… That is enough to incite our policymakers in the United States and that is exactly why they hate Russia, by the way.

His comment about Hungary was idiotic. Criticism of Hungary has nothing to do with its Christianity. In fact, while 80 percent of Hungarians identify as Christian, according to a 2019 survey, only 15 percent are regular churchgoers. It is not, in terms of organized religion, a pious nation. In a 2018 poll, only 14 percent of Hungarians said religion was very important.

But it was Carlson’s aside about Russia that earned him the trophy. In that 2018 poll, only 7 percent of Russians noted they attended church weekly, and 16 percent said they regarded religion as very important. So how Christian is Russia? More significant, Russia is now waging a brutal war against Ukraine, killing civilians, torturing prisoners, kidnapping children. Yet Carlson refers to Russia as a Christian country and asserts that opposition to Russia and Putin is prompted by a supposed hatred on the left of Russia’s Christianity. When it comes to defending the perpetrator of horrific barbarity and war crimes, the judges wonder what Jesus would do.

The Mailbag

I recently sent a message to the employees who toil in the subterranean mailroom at Our Land Global Headquarters and asked, “How are you guys doing?” They responded by sending me a video:

I took that to mean they are still trying to catch up with the summer mail that piled up while we all were working on our tans. As they plowed through the backlog, they did forward me these three electronic letters that warrant attention.

Richard Knabel emailed:

Your piece today about abortion and anti-sex is so right on. At its root cause abortion has always been about controlling sex and women. My good friend, Al Moran, who created Planned Parenthood New York out of three separate organizations in the 1960s, always said the same thing. Al died in 1994, but I’ll never forget the celebratory dinner I shared with him, and a group of his family and friends, when Roe was decided in 1973. He was euphoric: “It’s finally decided, it’s over!” he exclaimed in his booming voice while drinking some champagne. Well, it wasn’t. The battle will continue until long after I’m gone too, but the more we talk about anti-sex and expose the hypocrisy and control issues underlying it, the better. I wish I had heard your run-in with that bigot on Pat Buchanan’s radio show. I hope you were pleased at the discomfort you caused him. Of course, his righteous certainty would never permit him to question his self-anointed position to judge other people.   

Sadly, Richard, your friend Al was wrong when he assumed the Roe decision concluded the fight over abortion (and sex) in 1973. After the Supreme Court last year ended a woman’s right to obtain an abortion, I wrote a piece noting that the right had schemed and organized for half a century in order to reach that point. It did not accept defeat in 1973. There’s a lesson for all of us in that. By the way, anytime this issue arises, proponents of reproductive rights ought to describe the matter as a battle over women’s freedom. Is not merely about choice; it’s a question of whether women are fundamentally free to make their own decisions.

Michael Scanlon wrote:

 I don’t believe you have written anything about the war in Ukraine. I am an active follower on Telegram, where I read both Russian and Ukrainian war blogs (translated of course). I know some of my leftist friends are torn with this conflict. As for me, it might be the first war in which I actually support the US involvement in my lifetime. Would love to hear your position. There is a definite angle for you. How the GOP has done a historical 180, on their hatred of Russia. Just a thought.

You’re right. I haven’t written much of late about the horrendous war that continues in Ukraine. My simple take is that the Biden administration has mostly adopted the right approach: support Ukraine with military supplies and other assistance, while attempt to contain the conflict to warfighting between Russia and Ukraine. Vladmir Putin’s heinous attack on Ukraine and its citizens does threaten democracy elsewhere, but avoiding a world war in a nuclear era is a top priority. And we ought to remain open to ideas for ending the war, though at this stage I don’t see opportunities for that in the near future.

It is stunning how many Republicans and conservatives have either outright sided with Russia or have dismissed the notion of standing with Ukraine, a democracy, against the imperial and illegal aggression of Moscow. Putin bombs civilian targets, commits war crimes, and kidnaps children, and right-wingers like Marjorie Taylor Green call for ending US support of Ukraine, which would pave the way for more atrocities and aid Putin’s attempt to impose his tyranny upon another nation. And see the winner of this week’s Dumbass Comment of the Week above.

This is a reversal of the traditional Republican position of hawkishness and opposition to Russia, though establishment Republicans continue to support military assistance for Ukraine, and we see this split in the party reflected among the 2024 GOP contenders. I believe at least two dynamics have propelled the shift on the far right. The MAGA-fied conservative movement has become automatically oppositional. Anything Biden advocates, it must oppose. If he had done nothing regarding Ukraine, these conservatives would have attacked him for that. At the same time, there is indeed love on the right for Putin. Prior to the invasion of Ukraine, far-right notables, such as Steve Bannon and Tucker Carlson, were singing Putin’s praises, noting that he’s anti-woke and no fan of gay rights. They identify with his cultural conservatism, and they side with him in his assault on liberal democracy (and probably appreciate his support of Trump). It’s bizarre, I know. But that’s the Trumpist right.

Edie Allen had a question:

What has happened to Dumbass Comment of the Week? Surely they are plenty of worthy contestants.

There always are plenty of worthy contestants. Often too many. Of all the Our Land features, DCotW might be the hardest one to tend to each week. It can be rather dispiriting. So much idiocy. Consequently, the judges, who ought to receive hardship pay for this work, need the occasional break. But as you can see above, they are back in the salt mines.

The Watch, Read, and Listen List.

Read Recent Issues of Our Land

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Got suggestions, comments, complaints, tips related to any of the above, or anything else? Email me at ourland@motherjones.com.