Where the Trump Disqualification Push Stands
Illinois is keeping him on the ballot—but the electoral math might be keeping him up at night.
ON TUESDAY, THE ILLINOIS STATE BOARD OF ELECTIONS voted that Donald J. Trump cannot be disqualified from the presidential ballot in that state for having engaged in insurrection under Section 3 of the Fourteenth Amendment. This decision follows high-profile rulings in two other states—issued by the Colorado Supreme Court and the Maine secretary of state—that his misconduct does disqualify him from the ballot in those states. Earlier this month, the U.S. Supreme Court agreed to review the Colorado decision. Presumably its ruling will bring clarity to the matter, but in the meantime, other state election officials or courts may also make their own determinations about whether Trump can be on the ballot.
In light of the news from Illinois, here are four things to keep in mind about the debate over whether Trump is constitutionally disqualified from office:
1. Because Congress has never passed a federal law authorizing lawsuits to enforce Section 3, the litigation is happening under state law.
Each state has its own procedures and standards for determining who gets on the ballot. In some states, like Maine, challenges are brought to secretaries of state whose decisions are then reviewable by the courts. In others, like Illinois, challenges go to election commissions. In Illinois, the election commission has a history of deferring to the report and recommendation of a hearing officer. In this instance, that report recommended against keeping Trump off the ballot, on the rationale that the election board “can[not] decide whether candidate Trump is disqualified by Section 3 of the Fourteenth Amendment, without embarking upon constitutional analysis.” The board essentially punted, with the hearing officer noting that the question is not only a legal one, but a legal one that involves “significant and sophisticated constitutional analysis.” It did not find that Trump didn’t engage in insurrection—it just determined that it’s not up to the election board to decide. In Colorado, by contrast, “a trial judge hears evidence” of disqualification, as the hearing officer noted.
Get our legal coverage delivered straight to your inbox: Subscribe today.
2. Even a small number of states excluding Trump from the ballot could keep him from the White House.
To have an effect on the 2024 election, enough states would have to agree with Colorado to deprive Trump of 270 electoral votes. Most cases have already vanished from court dockets for one reason or another, although there remain live lawsuits in Alaska (with its 3 Electoral College votes), California (54), New Mexico (5), Texas (40), Louisiana (8), Wisconsin (10), New Hampshire (4), Vermont (3), New York (28), Virginia (13), North Carolina (16), and South Carolina (9); a few others were dismissed but are on appeal. That makes a total of 193 additional Electoral College votes in play, and adding in Colorado (10) and Maine (41) brings the total to 207. Even if the challengers who want Trump off the ballot prevailed in all of these states, he would theoretically still be in the mix for 331 votes—well over the 270 threshold.
But more importantly, how many of the states listed above are states that Trump could realistically win in 2024? Among the states on that list, he won Alaska, Texas, Louisiana, North Carolina, and South Carolina in 2020, and in 2016 he also won Wisconsin. Those states account for 86 electoral votes. That would easily be enough votes unavailable to Trump to tip the Electoral College vote away from him.
Of course, there’s no realistic way that all of these states will join Colorado and Maine in dropping Trump from the ballot (the trend, in fact, is otherwise). But it would not take all of those states ruling Trump disqualified for office to have a decisive effect on the election. If, say, Texas alone were to remove Trump from the ballot, he would likely not be able to win the presidency in 2024 without winning every swing state plus some states he never won before.
3. Why did the Supreme Court agree to hear the Colorado case?
The justices could have easily done the math and decided that it’s highly unlikely that Section 3 will decide the election, so there’s little point in wading into these treacherous waters—especially given that the Court is (rightfully) under attack for being ideological and political instead of judicial in many cases. Good judges try as strenuously as possible to stay out of political, cultural, and policy-oriented fights. That the Court did not do that in this case suggests that certain justices feel eager to put their stamp on this one. Given this Court’s right-leaning configuration, that could mean a nod to Trump.
4. The Court should be careful not to read Section 3 out of the Constitution altogether.
The Colorado case is guaranteed to produce divided opinions. If the Court rules in Trump’s favor by overruling Colorado, there are a number of directions it could go to justify its decision. One option: The Court could rule that Section 3 is a dead letter unless Congress passes a law implementing it (which, with one chamber led by Republicans, Congress won’t do). That would at least have the benefit of keeping Section 3 on the back burner for future insurrectionists who would be “king.” Or it could rule that presidents are not covered by Section 3 (on the dubious claim that they are not “officers” of the United States), that January 6th wasn’t an “insurrection” (an assertion that borders on laughable), or that because Trump stayed on the sidelines and didn’t engage in violence on the ground, he didn’t “engage in” insurrection at all (an argument that seems too lawyerly even for lawyers).
If the Court goes down either of these latter two routes, the question will become, what would be disqualifying short of hand-to-hand combat by a president? Of course, the logical answer is nothing. No would-be dictator is going to join the rank and file on the ground, AR-15 in hand. He will keep his coup efforts behind the scenes, masterminding the event until it’s time to appear on a balcony in triumph, waving to adoring crowds. If the Court rules that Trump didn’t engage in insurrection on January 6th, that future insurrectionist presidential candidate will do so with the blessing of the Supreme Court.
All told, the case has vast constitutional implications—but not necessarily for the presidency. Hopefully, Trump won’t wind up in the Oval Office this round, and January 6th will become a horrifying footnote in history, never to be repeated. Presumably, that’s exactly why the framers of Section 3, reeling from the bloody Civil War, included it in the first place. The Supreme Court should respect the framers’ decision rather than effectively write Section 3 out of the Constitution altogether. If Section 3 is to be repealed, the people should be the ones to do it, not unelected judges.
Maine is not a winner-take-all state when it comes to awarding Electoral College votes, so there might be fewer votes in play in that state at the end of the day.