This month, a Denver judge will decide whether Donald Trump is disqualified from appearing on Colorado’s 2024 primary ballot, following a weeklong hearing focused on the Jan. 6 attack at the U.S. Capitol and Trump’s role in stoking it.

The people alleging Trump’s ineligibility are relying upon Section 3 of the 14th Amendment, a post-Civil War provision disqualifying those who have taken an oath to the U.S. Constitution from serving in federal or state office if they “engaged in insurrection.”

While the proceedings in Colorado and a related case in Minnesota were unfolding earlier this month, Prof. Andrea Katz participated in a conference with other legal scholars about the history of Section 3 and its potential applicability to Trump. She spoke to Colorado Politics about the numerous issues surrounding the fundamental question of disqualification.

FAST FACTS:

• Andrea Katz is an associate law professor at Washington University in St. Louis.

• She teaches and writes about constitutional law, including the topics of separation of powers, constitutional design and presidential power.

• Katz clerked for a federal judge in Massachusetts and for the European Court of Human rights in France. 

Colorado Politics: Compared to some of the massive shifts in constitutional interpretation recently – the U.S. Supreme Court’s gun rights and abortion rights decisions, for example – how important is this question of the 14th Amendment’s disqualification provision and its applicability to a former president?

Andrea Katz: It might or might not be important. Unlike Bruen and Dobbs, the court’s gun and abortion decisions, it’s still really unclear what path this Section 3 litigation will take. Although there are several states currently considering challenges to Trump’s eligibility to be on the ballot in 2024, we don’t know whether any of them will succeed. If the plaintiffs don’t prevail in any of these states, the Supreme Court almost certainly won’t have an opportunity to consider the issue.

CP: You have previously described the various “off ramps” a judge can take to avoid rendering Trump ineligible under Section 3. What are those off ramps, and do you think it’s better for a judge to take any of those or to not take them?

AK: Section 3 of the 14th Amendment – the language the Colorado and Minnesota cases are being argued under – bans a person from holding state or federal office if they engaged in insurrection against the United States after having sworn an oath under the Constitution.

For the plaintiffs to succeed in these cases against Trump, they have to convince a court of several things – this is to say, if a court wanted to avoid this thorny and politically delicate question, there are several “off-ramps” that would allow it to do it:

? Does Section 3 apply to the POTUS, since the text mentions representatives and senators by name, but not the president? In other words, an insurrectionist can still run for president, but not senator?

? Does Section 3 exclude a candidate from appearing on the ballot or only from holding office? 

? Did an insurrection take place on Jan. 6 at all? Trump’s lawyers have argued that it amounted merely to a riot or isolated violence.

? Did Trump “engage” in an insurrection, if there was one? It’s been argued that his address to the Jan. 6 rioters is protected speech, not incitement. 

? Is Section 3 self-executing? If so, a state can act on it directly. If not, Congress has to pass a law clarifying its terms (say, defining Jan. 6 as an “insurrection” and the participants “insurrectionists”).

? Does Section 3 require a prior criminal conviction? That is, for a person to be excluded from office as an insurrectionist, is it necessary that they have been found guilty of the crime of insurrection by a court?

That’s not an exhaustive list, and some of those questions are more legally interesting than others. 

CP: Those who are skeptical of this approach to disqualifying Trump from the ballot have likened it to voter suppression. You have also acknowledged that, legal questions aside, it’s legitimate to ask if this is a good idea, in addition to whether the Constitution authorizes it. But there are plenty of constitutional provisions that don’t seem like good ideas when read in the year 2023. Isn’t it better to get an answer about how Section 3 applies to a president like Trump, especially if he could win a second term next year? 

AK: This is a question without easy answers. There are “slippery slope” arguments to be made on both sides. Some people fear that to exclude Trump from the ballot will provoke distrust in our electoral institutions, perhaps even outbreaks of violence. On the other hand, isn’t a terrible precedent being set if a president can lose an election, refuse to leave office and suffer no consequences? It’s hard to weigh these two dismaying possibilities.

CP: Are there meaningful differences you see between the Colorado case and the Minnesota case that are both seeking to exclude Trump from next year’s ballot?

AK: The differences are mostly procedural. The Minnesota case is being argued directly before their state Supreme Court, whereas Colorado’s is taking place in a lower state court and would still need to be appealed to the Colorado Supreme Court. At least at this early stage, it looks like the Minnesota judges are showing themselves more wary of removing Trump from the state ballot, believing this is a matter that Congress should decide.

(Editor’s note: The Minnesota Supreme Court has since allowed Trump to appear on the state’s primary ballot, without addressing his eligibility for the general election.)

CP: One of the questions in the Colorado case is whether courts can enforce Section 3’s disqualification provision. As a practical matter, if courts cannot exclude a candidate from the ballot because they engaged in insurrection, why would they have the authority to exclude someone who is, for example, not 35 years or old? Or not a natural-born citizen? Or served two terms already?

AK: This is a good question. It’s easier to see those decisions as clerical and mechanical – just consult a person’s birth certificate – than the question of whether someone has “engaged” in an “insurrection,” which is more technical, interpretive, bound up with values.

CP: More than a decade ago, a naturalized citizen named Hassan wanted to run for president and the federal appeals court based in Denver, the 10th Circuit, agreed Colorado’s secretary of state could keep him off the ballot because he didn’t meet the constitutional qualifications. Judge Neil Gorsuch wrote at the time that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

Neil Gorsuch is now a Supreme Court justice, appointed by Trump. If this question of presidential disqualification were to reach the Supreme Court, would you anticipate Gorsuch to decide the case the same way he did in 2012?

AK: This is hard to say. It depends on whether Justice Gorsuch reads Section 3 of the 14th Amendment in the same way he does Section 1 of Article 2, the text that was at issue in Hassan. Article 2 says, “No Person except a natural born Citizen … shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

It’s true, at least, that the two are similarly phrased (“No person shall…”). Such language gave the Hassan court reason to treat the language as self-executing, and therefore gives at least a facial reason to think that the two passages should be applied the same way. That said, Hassan turned on the more “mechanical” question of a candidate’s citizenship, and not the definition of an insurrection.

CP: If the Supreme Court were to weigh in and decide Trump cannot be excluded from the ballot – and the decision happens to be along ideological lines – is it running the risk this will be viewed as another Bush v. Gore? That the Supreme Court, for the second time in a quarter century, is aiding the Republican candidate? On the other hand, if they decide he is disqualified, what consequences do you foresee there?

AK: The stakes of either decision likely won’t be as high as they were in Bush v. Gore, when, one month after the general election, the court essentially put a halt to a recount in Florida that, had it been allowed to continue, could have delivered Florida’s electoral votes – and therefore the 2000 election – to Al Gore. Here, if the court were to reverse a disqualification, it would simply mean the election has to be run as normal.

That’s said, it’s true that such an opinion could threaten to make Section 3 meaningless.

On the other hand, if the court defies the obvious political outcome and upholds a disqualification, the timing matters. If such an opinion came down before the Republican National Convention, party leaders might be able to ensure that another candidate secures the Republican nomination. If the Supreme Court’s decision comes later in the process, it would prove more chaotic.