Can the 14th Amendment be used to block Trump from 2024 ballots?

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• Geoff Bennett :

  Despite his legal troubles, former President Trump has a clear lead in the race for the Republican nomination, but is he qualified to run?

  As Laura Barrón-López reports, a cohort of conservative legal scholars argue no. And a new lawsuit could put their theory to the test.

• Laura Barrón-López:

  It comes down to the 14th Amendment, a Civil War era clause in the Constitution that disqualifies candidates who have engaged in insurrection or rebellion or given aid or comfort to the enemies thereof.

  A belief that Trump violated that standard with his actions on and before January 6 is gaining traction among his opponents on the campaign trail and in Congress.

  Fmr. Gov. Asa Hutchinson (R-AR), Presidential Candidate: Obviously, I'm not going to support somebody who's been convicted of a serious felony or who has — is disqualified under our Constitution.

• Rep. Jamie Raskin (D-MD):

  I agree with the conservative Federalist Society law professors who are out there saying, as well as Mr. Hutchinson, that Donald Trump is disqualified, just as if he were running and not a born U.S. citizen or if he were running and he were 24 years old.

• Laura Barrón-López:

  And, this week, a longshot candidate in the New Hampshire GOP primary filed a lawsuit to keep Trump off the ballot, testing this theory.

  What does this all mean for the next election and our legal system?

  To explain, I'm joined by Ned Foley. He's the director of election law at Ohio State University's Moritz College of Law.

  Ned, thank you so much for joining.

  The conservative legal scholars who wrote a paper on this say that, once they dug into the actual question, they determined that former President Trump is disqualified under the 14th Amendment. Has this theory ever been tested before?

• Ned Foley, The Ohio State University:

  Well, not in our lifetimes.

  Because it's a Civil War provision in the Constitution, there was some litigation around this clause back in the 19th century, but — and it has been tested not for a presidential election, but for lower offices. For example, in New Mexico, a county clerk was removed because he was someone who actually had been at the Capitol on January 6.

  So — but in terms of a presidential election, the kind of litigation that we're seeing now, no, it's untested in that context.

• Laura Barrón-López:

  And, in New Hampshire, a longshot candidate for the Republican presidential nomination is suing to keep Trump off the ballot there. How likely is that to succeed?

• Ned Foley:

  Well, I think this particular lawsuit is unlikely to succeed for technical reasons of procedure.

  But there's — this isn't going to be the only lawsuit of its type. Already, some other ones have been filed. There's one in Florida and elsewhere. And so I think — and around the country, we're going to see this, because every state has its own rules for putting candidates on the ballot.

  And so this could come up in each and every state. And, obviously, President Trump seeks to be a candidate in all the states around the country. I think it's important that this issue be decided before the November 2024 election, so that it doesn't come up afterwards.

  So all you need is one of these initial lawsuits to make it to the U.S. Supreme Court to get a definite resolution of the issue.

• Laura Barrón-López:

  Maybe you're right that secretaries of state could bring a case themselves. Voters could pressure for a case to be brought.

  And it's already under discussion in some states, like Arizona and Michigan, swing states, where those secretaries of state are seeking legal advice about where this could lead. So how would those cases differentiate from this New Hampshire one?

• Ned Foley:

  We're going to see this in different variations.

  Secretaries of states and other election officials, because they're government officials responsible for the ballots, they have their own special access to courts. But it all depends on the content of state laws. And the state laws can vary in each and every state about whether they give permission for this kind of lawsuit.

  So, even if the secretary of state would like to pursue it, that's not enough. There has to be a state statute written by the state legislature that authorizes this kind of lawsuit.

• Laura Barrón-López:

  Ned, do the criminal indictments brought forward by the Justice Department or by Fulton County in Georgia impact the potential lawsuits here under the 14th Amendment?

• Ned Foley:

  No, they're separate. Those are criminal trials under different criminal laws that Congress has passed or the state of Georgia has passed.

  And even if former President Trump were convicted, under those prosecutions, they would not disqualify him from running as a candidate. The only mechanisms for disqualification are, one, the impeachment procedure. But Congress — the House of Representatives voted impeachment, but the Senate did not reach a conviction by the two-thirds required.

  So that's why there's focus is now on the separate part of the Constitution, the 14th Amendment disqualification provision. Those are the provisions that allow for disqualification. But criminal trials do not.

• Laura Barrón-López:

  Ned, ultimately, is this an outlandish legal theory, or is this something that the country actually needs answered?

• Ned Foley:

  The country definitely needs answered.

  It's not an outlandish theory. The arguments for disqualification are quite strong, very strong. But there are counterarguments on the other side. The strongest argument is that, whatever Trump's moral culpability was for the riot that occurred, that he fomented the riot, that his tweet that "It will be wild" on January 6, those kinds of things that clearly implicate him in the January 6 attack, does it count as engaging within the meaning of the Constitution, or is it sufficiently giving aid and comfort to the insurrectionists?

  It is something that needs resolution. And that's why I think the U.S. Supreme Court is the right institution to do it. And I think it would be better for the country if it happened sooner, rather than later.

• Laura Barrón-López:

  Ned Foley of Ohio State University, thank you so much for your time.

• Ned Foley:

  Thanks for having me.

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