This issue could knock Trump off ballots nationwide. Get ready for it to dominate primary season

WASHINGTON —  Even as the criminal cases against Donald Trump dominate headlines, a different, less publicized wave of litigation is building that could endanger his presidential ambitions: efforts to exclude him from the ballot under a constitutional provision adopted after the Civil War.

The provision, Section 3 of the 14th Amendment, bars from office people who engage in “insurrection.” It has gotten renewed attention this month with publication of a lengthy law review article by two conservative legal scholars who argue that Trump’s conduct fits precisely within the amendment’s original meaning.

Even before that, however, liberal legal groups had begun researching state laws and working with voters who could challenge Trump’s access to the ballot.

“The American public should expect to see a series of challenges filed in state after state,” says Ron Fein, legal director of one such group, Free Speech for People.

Challenges likely will come toward the end of this year and early next year, as the deadlines hit for candidates to file for the ballot, and could dominate the early months of the primary season.

“People are not anticipating how pervasive these will be,” said Notre Dame law professor Derek Muller, an election law expert.

Whether the efforts succeed is anyone’s guess; the legal issues are complex and without clear precedents and could lead to a Supreme Court showdown early in the new year.

Win or lose, however, the issue could severely disrupt a primary season that is already fraught with potential for strife and violence — another example of how Trump’s flouting of the law is stressing the country’s legal and political systems.

A constitutional exclusion

So what’s this all about?

The 14th Amendment, added to the Constitution three years after the end of the Civil War, is best known for its first section, which guarantees due process and equal rights to all American citizens and forms the basis of a huge swath of modern constitutional law.

At issue with Trump is Section 3 of the amendment, which bars from office anyone who, having previously sworn an oath to support the Constitution, has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The language was written to prevent former officials who had backed the Confederacy from regaining power, subject to an out — Congress could grant amnesty by a two-thirds vote.

Four years after the amendment was ratified, Congress approved such an amnesty, putting Section 3 on the shelf. There it sat, largely untouched, for 150 years until a pro-Trump mob stormed the U.S. Capitol on Jan. 6, 2021.

That the amendment’s strictures go beyond just the Confederacy seems fairly clear — nothing in the language limits it to the Civil War. Heated debate surrounds nearly everything else: whom the ban applies to, how it should be enforced, what types of conduct “insurrection or rebellion” covers.

One central question is whether Congress needs to pass a law to enforce the ban. Shortly after the amendment took effect, a federal appeals court held that was the case, but the recent law review article by professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas strongly disputed that.

“Section 3 is self-executing. That is, its disqualifications from office are constitutionally automatic,” they wrote, likening the disqualification to the requirement that the president be 35 years old and a natural born citizen.

“In our view, on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack,” they said. State elections officials, they said, have a constitutional mandate to uphold the amendment’s terms.

Another well known conservative scholar, Steven Calabresi of Northwestern University’s law school, has taken the same position, as have some leading liberal scholars, including Harvard’s Laurence Tribe.

Others — including Trump’s lawyers, but also some vocal critics of the former president — vehemently disagree. Opponents of using the 14th Amendment to disqualify Trump argue that the events of Jan. 6 didn’t rise to the level of an insurrection. And, they say, even if Jan. 6 was an insurrection, Trump didn’t “engage” in it.

“I have no truck with Trump, for whom I have low regard. But in the haste to disqualify Trump, we should be wary of too loose an interpretation of Section 3,” former federal Judge Michael McConnell, now of Stanford Law School, recently wrote.

“We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic.”

That argument misses the point, says Brianne Gorod, chief counsel of the D.C.-based Constitutional Accountability Center, which took part in an effort to disqualify former Rep. Madison Cawthorn (R-N.C.) from office because of his support for the Jan. 6 attack.

“Simply because there might be close cases in the future does not mean that we should shirk from enforcing Section 3 today in cases arising out of Jan. 6 that are not close,” she said. “If we were to let ‘slippery slope’ concerns prevent us from enforcing this provision as broadly as its text and history require, it could effectively turn this critically important provision of our Constitution into a dead letter.”

The argument is almost certain to be tested in coming months.

Fein’s group earlier this year sent letters to secretaries of state in several states reminding them of the constitutional text and including draft language for a declaration that could be used to exclude Trump from primary ballots. Other groups, such as Citizens for Responsibility and Ethics in Washington, which has represented voters in challenges to officials who supported or took part in the Jan. 6 attack, are also active.

Challenges to Trump will hit an already stressed election bureaucracy that sometimes has to decide if a candidate has submitted enough signed petitions or lives in the district they’re running to represent, but may be overwhelmed by the question of a former president’s culpability for an armed attack on the Capitol.

Typically, challenges to a candidate’s eligibility don’t come until after the candidate has officially filed for the election, and candidates often wait until close to the filing deadline to handle that task, said Muller.

In this presidential election cycle, candidate filing deadlines begin with Nevada on Oct. 16 and then multiply in November and December, meaning that a wave of challenges to Trump’s eligibility likely will start hitting election officials around the country late this year, especially in Democratic-majority states where challengers may hope for a favorable ruling that could propel the issue rapidly to the Supreme Court.

Once a challenge is filed, there’s pressure to resolve it fast so states can print their ballots.

“There’s not a lot of time,” Muller said, and the process is “not ideal.” The state officials — ballot commissions in some states, secretaries of state in others — “are not really set up for something like this.”

“But that’s the way the system is set up,” he added.

The latest from the campaign trail

Column: Another day, another Trump indictment isn’t some ho-hum event

It’s not every day a former president of the United States is criminally indicted. In the case of Trump, it’s just about every month, Mark Barabak writes in his column. There’s something worse, though, than finding humor in the true wretchedness of Trump’s misdeeds, he says. It’s apathy.

The latest from Washington

Kevin McCarthy has a bill to save the sequoias, but some environmental groups aren’t into it

In November 2021, during a plane ride from Qatar to Washington, D.C., Rep. Bruce Westerman (R-Ark.) approached Rep. Scott Peters (D-San Diego) to talk about sequoias. The humongous trees don’t grow in either of their districts but are considered a national treasure. The last known large-scale destruction of these trees was in 1297. But since 2015, an estimated 20% of the surviving population has been lost to wildfires. The intensity of these fires has been exacerbated by hotter and drier climates and decades of the government’s well-intended wildfire suppression policy. The trees could go extinct within the next three decades unless something changes, some researchers say. During their 45-minute conversation on a plane somewhere over the Atlantic, the Arkansas lawmaker convinced the Californian of the urgency of the threat. From their interaction emerged a rough blueprint for legislation intended to save the sequoias from extinction, Erin Logan reported.

Biden administration warns Guatemala against rejecting democracy in presidential election

Biden administration officials are working intently to prevent the Guatemalan government, one of their few allies in Central America, from overturning election results that put a leftist in next week’s presidential runoff — to the dismay of right-wing elites in that country who have long called the shots. With persistent phone calls, in-person visits, public denouncements and sanctions on key people including Guatemala’s attorney general, U.S. officials are warning the country’s powerful military, political and business forces of the danger of subverting democracy, Tracy Wilkinson reported.

The latest from California

Lacking political power in California, conservatives turn focus to local school boards

In a state where Republicans have almost no political power at the Capitol — they haven’t won a statewide office since 2006 and hold fewer than a quarter of the seats in the Legislature — conservative efforts to shape school boards are now bearing fruit. Parents who first mobilized during the COVID-19 pandemic to push for reopening schools and to fight vaccine and mask mandates are pivoting to clashes over race and gender issues in education. And while Republicans can’t get traction in Sacramento, they are finding some success on school boards in conservative pockets of California — and are hoping the education-based culture wars will help the GOP build power in the coming election year, Laurel Rosenhall, Hannah Wiley and Mackenzie Mays reported.

How Rep. Adam Schiff celebrated the fourth indictment of former President Trump

Riverside County Democratic Party Chair Joy Silver worked the crowd with the guile of a Vegas nightclub opening act, stalling until Rep. Adam B. Schiff arrived. A room of about 150 or so eager liberals had turned out to see the Senate candidate and archenemy of Trump. Instead, they were hearing Silver butter up every Democratic club in the county. It wasn’t that the Burbank representative was stuck in traffic or hobnobbing with VIPs Tuesday evening. “He’s out in the parking lot doing CNN,” Silver told the crowd, which cheered upon hearing that news. “If you get CNN on your phone, he’s on the air right now. He’ll walk right in, so we just got to wait a few more minutes.” As a top candidate for Senate, Schiff is using ubiquity to fuel his campaign strategy to be everywhere, all the time, doing local and national media along with campaign events big and small. Hence the waiting satellite van in Riverside, Benjamin Oreskes reported.

Poll: California voters agree political disinformation is a big problem. But how to fix it?

A majority of California voters across lines of party, race and age find political disinformation a serious problem — and there is little agreement about whom to trust, a new poll from the UC Berkeley Institute of Governmental Studies found. Just over half of voters surveyed for the poll said that not knowing whether information is accurate and truthful is a “major problem,” while a third called it a “minor problem.” Alongside the pervasiveness of misinformation is a great distrust of information of any kind, good or bad, Faith Pinho reported.

Dispute over an all-trimester abortion clinic puts California’s image as haven to the test

After the Supreme Court overturned Roe vs. Wade last summer, Beverly Hills officials protested by lighting up the plaza in front of City Hall in a glow of pink. Council members had already voted 5 to 0 for a resolution backing abortion rights. “We have stood up and spoken out when we’ve seen human rights taken away,” then-Mayor Lili Bosse stated after the vote. “This is something I wholeheartedly support with all my soul.” But little more than a year later, the affluent city has become a battleground over reproductive rights, Jenny Jarvie reported.

Ex-Anaheim mayor to plead guilty to corruption charges tied to Angel Stadium sale

Former Anaheim Mayor Harry Sidhu, who championed the sale of Angel Stadium to a company controlled by the team’s owner, has agreed to plead guilty to federal charges stemming from the since-scuttled deal. The charges against Sidhu in a plea agreement filed Wednesday in U.S. District Court in Santa Ana include lying to FBI agents about not expecting to receive anything from the Angels when the transaction closed — secret recordings captured him saying he hoped to secure a $1-million campaign contribution — and destroying an email in which he provided confidential information about the city’s negotiations to a team consultant, Adam Elmahrek, Nathan Fenno and Gabriel San Román reported.

Sign up for our California Politics newsletter to get the best of The Times’ state politics reporting.