Following the January 6, 2021 attack on the Capitol, many continue to push state officials and courts to bar insurrectionists from office or the ballot pursuant to Section 3 of the 14th Amendment, which disqualifies from office anyone who has sworn an oath to support the Constitution and then engaged in insurrection against it. This provision of the Constitution—also known as the disqualification clause—has successfully barred elected officials who engaged in insurrection from serving in office as recently as last year in New Mexico state court litigation. Enacted in the wake of the Civil War, Section 3 establishes a qualification for office akin to other constitutional qualifications based on age, citizenship, and residency, and is the only qualification that applies to both federal and state offices. This provision can and should be used to hold former President Donald Trump accountable for his role in the January 6, 2021 insurrection.
All three branches of government have called the attack on the Capitol an insurrection. Moreover, the bipartisan U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol (“the Committee”) concluded that Trump was the “central cause” of the “insurrection” and recommended that action be taken to enforce Section 3 of the 14th Amendment to disqualify any officials who violated their oath to defend the Constitution by engaging in the insurrection on January 6. While a criminal conviction is not a necessary prerequisite to disqualification under Section 3, the conduct alleged in the recent indictments of Trump by the Justice Department and the Fulton County, Georgia, district attorney underscore the depth of Trump’s responsibility for fomenting the insurrection.
While Trump’s illegal attempt to disrupt the constitutional election certification process by mobilizing a violent mob to assemble in Washington, DC, and “fight like hell” at the Capitol was an unprecedented event in American history, removing disqualified candidates from the ballot is not. It is a standard and essential tool used by secretaries of state and other state election officials to maintain the integrity of their electoral processes by barring individuals who are not constitutionally qualified to run for or hold office. Secretaries of state should exercise this authority, consistent with their states’ laws, to implement the Committee’s recommendation to enforce Section 3 by excluding from the ballot candidates who are ineligible to hold office.
As this report explains, barring or removing candidates from the ballot for failing to meet substantive or procedural qualifications, such as age, citizenship, or residency requirements, or failure to collect the minimum number of signatures to appear on the ballot, is a routine and basic process. All 50 states and the District of Columbia have excluded candidates who do not meet requirements to appear on the ballot, and excluding Trump and other disqualified insurrectionists can be done through the same mechanisms.