The fight to remove former President Donald Trump from the 2024 ballot could make it to the Supreme Court, according to court watchers, who say it’s not clear how the justices would rule if they get involved in the political fray.
Several lawsuits filed across the country claim Mr. Trump should be disqualified from the ballot. This type of case would warrant a look from the high court, especially if Mr. Trump’s opponents successfully remove him from the ballot under Section 3 of the 14th Amendment.
The post-Civil War clause essentially says that anyone who leads an insurrection or rebellion against the U.S. government is disqualified from holding public office.
“I anticipate that this will ultimately go to the Supreme Court. Given the composition of the court, my best guess is that the court would find a way to keep Trump on the ballot, probably arguing that ‘the voters should decide’ or something like that,” said Steven D. Schwinn, a law professor at the University of Illinois Chicago.
Mr. Schwinn said the court could call the case a “political question” and decline to hear it.
“Depending on how the case comes to the court, that could cut either way. If all this sounds like we don’t know, that’s about right. As with so many things Trump, we’re truly in uncharted waters,” he said.
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A federal judge this month dismissed a lawsuit brought by a Florida tax lawyer attempting to disqualify Mr. Trump under the 14th Amendment. The lawsuit said Mr. Trump fomented an insurrection after his 2020 election loss.
Judge Robin L. Rosenberg, an Obama appointee, said the lawyer did not have a specific legal injury to bring the federal lawsuit.
Legal scholars have debated whether Mr. Trump could run for president after the Jan. 6, 2021, riot in which a pro-Trump mob breached the U.S. Capitol in an attempt to prevent Congress from certifying Joseph R. Biden’s election win.
Harvard University professor emeritus Laurence Tribe said Mr. Trump shouldn’t be able to run for reelection. He said the Constitution’s 14th Amendment is clear and is too big of a hurdle for Mr. Trump to surmount.
“You are disqualified, period,” Mr. Tribe, a liberal legal analyst, said on CNN. “So all of the charges against the president, which at the moment don’t happen to include insurrection, are really beside the point.”
Not all legal experts agree with that analysis of Section 3 of the 14th Amendment, which reads: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Under the section, a two-thirds vote in the House of Representatives and the Senate can requalify a candidate.
The clause has been used a handful of times since the 1860s.
Though Mr. Trump is facing criminal charges in four separate cases, he has not been charged with insurrection nor convicted of any crime.
He is facing federal trials in southern Florida over his handling of classified documents and in the District of Columbia for trying to overturn the 2020 election. Special counsel Jack Smith is prosecuting both cases.
Mr. Trump is also charged under New York state law with falsifying business records to hide hush money payments made during the 2016 campaign and under Georgia state law with attempting to overturn the 2020 election results in that state.
John Yoo, a former Justice Department lawyer who is now a law professor at the University of California, Berkeley, wrote in The Federalist that if Mr. Trump clearly led an insurrection, then the Justice Department could have acted on a referral to prosecute the former president from the congressional Jan. 6 committee investigating the riot.
The Senate could have voted to convict Mr. Trump when the House impeached him on an incitement of insurrection charge in the Jan. 6 riot.
“The Senate’s acquittal is the only official finding by a federal or state institution on the question of whether Trump committed insurrection. The failure of the special counsel to charge insurrection and the Senate to convict in the second impeachment highlights a serious flaw in the academic theory of disqualification,” Mr. Yoo wrote with Robert Delahunty, a fellow at the Claremont Institute’s Center for the American Way of Life.
John Castro, a long-shot Republican presidential candidate, has filed a petition with the Supreme Court over the matter.
Mr. Castro lost in a lower court but said in his petition that his campaign would be injured if Mr. Trump remains on the ballot.
“A primary candidate has judicial standing to bring a claim challenging the eligibility of a fellow primary candidate for competitive injury in the form of a diminution of votes and/or fundraising if the primary candidate believes that the fellow primary candidate is ineligible to hold public office and to prevent actions irreconcilable with the U.S. Constitution,” he wrote.
Ilya Shapiro, senior fellow and director of constitutional studies at the Manhattan Institute, said Mr. Castro’s petition is “not going anywhere” and that a case in Colorado is much stronger.
Citizens for Responsibility and Ethics in Washington filed a lawsuit in that state last week on behalf of Republican and unaffiliated voters saying Mr. Trump should be kept off the primary ballot under the 14th Amendment.
The watchdog organization is making similar cases across the country.
“I think there is a good chance that a credible petition gets to the Supreme Court before the first primaries, and I don’t know how they would rule,” Mr. Shapiro said.
He doubts the justices will step in unless a lower court removes Mr. Trump from the ballot.
“It’s better, more healthy for our institutions for Trump to lose fair and square rather than be thrown off the ballot at the outset,” Mr. Shapiro said.
Several secretaries of state are consulting experts on how to handle ballot printing and whether Mr. Trump’s name should stay on the ticket for voters to consider.
Derek T. Muller, a law professor at the University of Notre Dame, said a secretary of state’s authority over removing Mr. Trump’s name from the ballot depends on state law.
“It’s a state-by-state thing,” he said.
To get a state supreme court to weigh the issue, Mr. Mueller said, “You have to find the right state, at the right time, with the right challenge.”
“The Supreme Court’s hand might be forced if a state supreme court excludes him from the ballot because that’s pretty momentous,” he said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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