The 14th Amendment to the Constitution has received renewed scrutiny due to its potential role in the 2024 Presidential election. On December 19, the Colorado Supreme Court utilized it as justification for removing former President Donald Trump, the frontrunner for the Republican nomination, from the state’s primary election ballot. Shortly after, on December 28, Maine’s Secretary of State used that court’s opinion as precedent to remove Trump from their primary ballot. Both decisions are on hold as fierce litigation seeks to affirm or reject them, with the Supreme Court agreeing to hear the Colorado case on February 8.
What is the 14th Amendment?
The 14th Amendment was ratified in 1868, the second of three amendments adopted in the Reconstruction period following the Civil War. It is one of the most consequential amendments; its first section has been essential to jurisprudence desegregating schools, implementing and later removing affirmative action, and legalizing gay marriage. However, its third section has been the crux of arguments used to defend that Trump should be barred from holding office.
Put simply, the third section prevents any officeholder who committed an act of insurrection or rebellion against the United States from retaking office unless two-thirds of Congress allows them to. When it was written, it targeted legislators and military officials who joined the Confederacy, stopping them from regaining power. Outside of that circumstance, the article remained relatively obscure until the transition into the Biden administration in the aftermath of the 2020 election.
Why does it matter now?
After his defeat in the 2020 election, President Trump repeatedly made claims that the election was stolen and that the results should be overturned to recognize him as the legitimate victor. His attempts to undermine the integrity of the results culminated in a mob of his supporters attacking the United States Capitol on January 6, 2021 while Congress certified the electoral college results. The violence was universally condemned, and Trump’s escalating rhetoric was cited as the main cause. Specifically, many pointed to his rally shortly before the attack, where he told the crowd to “fight like hell… if you don’t fight like hell, you’re not going to have a country anymore” before saying that “everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
In the week following the riots and disruption of Congress, the House of Representatives drafted and passed an Article of Impeachment charging Trump with incitement of insurrection for, in their view, mobilizing his supporters against the government. While he was acquitted in a trial that occurred after his term had already ended, labeling the events of January 6 as an act of insurrection provided a basis for invoking the 14th Amendment to remove Trump from the primary ballot.
What’s next?
The Supreme Court will hear arguments in the Colorado case on February 8, 2024. They will be answering two questions: the first is whether Section 3 applies to the Presidency, as the language targets officers of the United States, and there is debate over whether that term encompasses the office of the President. The second is deciding whether states can apply Section 3 or if Congress is granted that power, as the only body that can overturn a Section 3 disqualification is Congress.
This case has major implications for the 2024 election and beyond. This situation is unprecedented in American history, and what the Supreme Court says will establish new jurisprudence. If Trump wins, Congress would likely assume greater control over the implementation of Section 3, potentially making it a tool or threat used during a disagreement between parties. If Colorado wins, states would be empowered to interpret Section 3 on a case-by-case basis. They would possess greater authority over their ballots, likely resulting in contentious litigation over which officials control the recognition of candidates on the ballot.
