The 14th Amendment's Disqualification Clause is Stuck In Limbo.

Background:

Note — This article is meant to supplement my previous commentary on the 14th Amendment’s Disqualification Clause in the context of recent developments and events; it’s an update, not a reworked perspective. To fully immerse yourself in this publication, please first refer to the above link.

Despite general bipartisan agreement on the Disqualification Clause’s applicability to Trump’s actions, implementation complications have rendered a fall from grace, reflective of the theory’s illustrious ascendency into the spotlight, imminent. Since my previous article, recent updates have not only confirmed much of my skepticism but led myself and others to question whether or not the once promising theory will ever materialize…

Opinion:

Soon after publishing my original meticulous probe into the trending legal theory, a judge in Florida’s Southern District issued an order of dismissal regarding Florida tax attorney Lawrence Caplan’s filing to prevent Donald Trump from running in 2024 based on the 14th Amendment. This ruling came on August 31 and cited a lack of standing — arguing that the plaintiff (Mr. Caplan) ‘suffered no injury particularized to him’ — as its rationale for dismissal. The ruling (read here) drew on a similar challenge to Barrack Obama’s candidacy in 2008 concerning his citizenship status, observing that ‘standing(s) has been a consistent barrier to lower courts hearing generalized, undifferentiated claims by voters and citizens.’ In plain language, voters can’t sue on behalf of generalized interests without demonstrating distinguishable, personal harm. This ruling sets the precedent for all challenges brought by individual citizens who aren’t 2024 election candidates, and thus, implementation of the disqualification clause through citizen lawsuits has been rendered infeasible.

But wait! That last sentence contained a caveat — what about plaintiffs who are running in the 2024 presidential election? Just two days before the dismissal of Caplan’s complaint in Florida, long-shot GOP nominee out of Texas, John Anthony Castro, filed a lawsuit in New Hampshire on August 29 that would force the state’s secretary of state to keep Trump’s name off the ballot. He’s followed up with a barrage of lawsuits in other states — Oklahoma, Wyoming, Vermont, North Carolina, Kansas, Montana, West Virginia, and Idaho — on the basis that their secretaries of state must prevent Trump’s name from appearing on the ballot because its presence damages his particular odds to earn the GOP nomination. Castro’s efforts have largely been dismissed as frivolous due to his infinitesimally small shot at winning the nomination, but on congruent legal grounds, scholars have suggested that GOP challenger Chris Christie adopt Castro’s efforts…

While Castro’s challenges are yet to be formally dismissed, his status as a non-competitive candidate means he too ‘lacks standing’ to sue, and as previously elaborated, a challenge from a prominent GOP contender like Christie would be deemed ‘too unprecedented’ to be sustained in court. I contend that unprecedented actions necessitate unprecedented consequences, but alas, I hold the minority view. Not only would a Christie lawsuit be perceived as a political attack, but because he and Trump draw from a similar voter base, Christie would ostracize himself from his supporters too. Despite his open criticism at the Republican primary debate, the New Jersey governor won’t be cliff-diving into such uncertain legal and political waters any time soon.

With individual citizens and rival contenders disqualified from invoking the 14th Amendment, this leaves the individual secretaries of state to unilaterally implement it. Earlier today (September 12), Politico released an article titled ‘Dem secretaries of state throw cold water on push to disqualify Trump from the ballot.’ As the headline suggests, the secretary of state strategy is next up on the chopping block.

According to the article, many of the nation's top election officials doubt they can wield such unfettered power to deploy an untested legal theory that bars Trump from running in 2024. This particularly pernicious development stokes extraordinary skepticism because, by definition, democratic secretaries of state have the most motivation, justification, and qualification to invoke the Disqualification Clause; if they won’t invoke it, no one will. Michigan Secretary of State Jocelyn Benson, a Democrat, recently declared the U.S. Supreme Court the only ‘appropriate place’ to resolve the disqualification debate. In her interview with Politico, she elaborated that “It’s not even appropriate for a state to give the secretary of state authority to do it. It shouldn’t be a unilateral decision from a political appointee or elected official. These should be determinations made by a judicial official.” She’s since been conferring with fellow secretaries of state, encouraging them to adopt her sentiment. Her colleagues are following suit.

An advocacy group named ‘Free Speech for the People,’ who’d previously contacted secretaries of state lobbying for them to exclude Trump from their ballots, sued in Minnesota on September 12. They’ll likely meet the same fortune as Caplan and Castro. However, Minnesota’s Democratic Secretary of State Steve Simon echoed his Michiganian constituent’s views in response to the suit by stating that ‘the law was clear in his state: Only Minnesota courts could make that call.’ Democratic Secretary of State in Colorado, Jena Griswold, also affirmed upon being questioned about her authority to invoke the Disqualification Clause that ‘the court has to make those determinations and likely will.’ And just for good measure, Adrian Fontes, the Democratic Secretary of State in Arizona, said that there is no mechanism to question eligibility (for secretaries of state), and that “at the end of the day there are nine folks wearing robes in Washington D.C. who are going to make that decision.”

Apart from debates concerning discretion, legal ambiguity concerning Section 3 of the 14th Amendment’s phrasing further complexifies the issue. Some election officials and legal scholars argue it’s not up to secretaries of state to define what constitutes an insurrection or rebellion. While it's clear to me and the vast majority of others that January 6 certainly constitutes a ‘rebellion or insurrection,’ no ruling has been issued to codify this interpretation. Furthermore, the law must formally link Trump to the insurrection or rebellion itself before the provision can be applied to him. A unanimous decision that clarifies these gray areas must be rendered by an elected official before the disqualification clause can be deemed irrefutably applicable despite its proclaimed ‘self-executing’ nature, yet another stalemate in this tumultuous process.

Today’s (September 13) formal decision by Republican New Hampshire Secretary of State David Scanlan to shut down any further attempts to exclude Trump from the ballot based on the 14th Amendment set a definitive precedent regarding this exact speculation. Scanlan sought close legal advice from New Hampshire Attorney General John Formella throughout his decision-making process, and both of their arguments adhere to state statute rather than federal. Scanlan ultimately concluded that that nothing in New Hampshire state statute provides that 1) the 14th Amendment applies to state primary elections, 2) the amendment’s provisions should take place during the delegate selection process, 3) the Secretary of State holds the discretion to entertain qualification inquiries. Attorney General Formella further backed Scanlan’s statement about discretionary ambiguity in state statute in his own concurring announcement.

Both New Hampshire officials also echoed their associates' consensus that the U.S. Supreme Court must resolve the dispute and that a conviction establishing a legal connection between Trump and January 6 must be delivered before the provision can be applied. Until this point, most secretaries of state still entertained the theory and privately probed its legitimacy while refraining from issuing a definitive, public statement. Scanlan diverges from this trend by preemptively denouncing the theory, leaving no wiggle room to even enable its consideration.

More recently, certain Republican secretaries of state have begun invoking democracy to argue that true believers in the institution would allow the voters to choose; if they elect Trump, hey — that’s democracy. However, the constitution was enacted specifically to prevent the mass plebiscite from arriving at irrational decisions. The rule of law acts as an impartial middle-man that protects our nation from the dangers of the ill-informed, and I believe that re-electing the demagogue who incited an insurrection to subvert our free elections would be far more anti-democratic than invoking the constitution, our democracy’s guardian, to disqualify him from office. But hey, that could just be me.

The other issue, specifically pertaining to Adrian Fontes's commentary about the ‘nine folks wearing robes,’ also undermines democracy. Allowing the courts to decide this issue as opposed to unanimous decisions by election officials is more democratic, but the last time I checked, our founding fathers delegated decision-making rights to far more than nine voices in our country. There’s no need to beat the dead horse, as I’ve argued against deferral to the Supreme Court in deciding political questions — despite the ‘political question doctrine’ it supposedly adopted in 1849, agreeing not to decide such matters — tirelessly. Allowing the courts to decide the Disqualification Clause’s fate falls in line with precedent, but legally, secretaries of state are equally empowered to exercise their discretion. They are the theory’s brightest beacon of hope, but clearly, they’ve gone belly-up on advocating its implementation.

The district rulings regarding ‘standing,’ infeasibility of a true contender bringing suit, and the consensus opinion amongst secretaries of state — Democrats and Republicans alike — that the courts must decide the 14th Amendment’s application to the 2024 election have all rendered the formerly trending theory stuck in limbo. Once widespread faith in its capacity has instead become skepticism; the future is bleak for section 3 of the 14th Amendment.