Democrats have been trying to get former President Donald Trump kicked-off the ballot using the 14th Amendment’s post-Civil War insurrection clause and have so far failed miserably in every state court where they’ve tried.
Forbes Magazine reported Trump’s candidacy remains pending in more than a dozen states, according to a tracker compiled by Lawfare, though challenges have so far been dismissed in such states as Florida, Minnesota and most recently Michigan, where a state judge ruled Tuesday to dismiss the challenge against Trump and ordered that the state’s secretary of state can’t unilaterally remove candidates from the ballot under the 14th Amendment.
The latest ruling came in Colorado where Denver District Court Judge Sarah B. Wallace ordered “the Secretary of State to place Donald J. Trump on the presidential primary ballot.”
Wallace’s ruling came after a weeklong trial in the case that got underway in late October—featuring testimony from such witnesses as Rep. Eric Swalwell, who was booted off the House Intelligence Committee for sleeping with a Communist Chinese spy, and police officers who were present at the January 6, 2021 demonstration at the US Capitol—with both sides then delivering their closing arguments on November 15.
Ultimately, Judge Wallace ruled – correctly in our opinion – that the disability the 14th Amendment placed upon former Confederate officers and elected officials does not apply to Donald Trump.
In reaching that decision Judge Wallace did what the plaintiffs who brought the case did not do – she read the law.
In her decision, according to reporting by KUNC.org, Wallace said she found that Trump did in fact "engage in insurrection" on Jan. 6 and rejected his attorneys' arguments that he was simply engaging in free speech. Normally, that would be enough to disqualify him under Section 3, but she said she couldn't do so for a presidential candidate.
Section 3 does not specifically refer to the presidency, as it does members of the U.S. Senate or House of Representatives. Instead, the clause refers to "elector of President and Vice President," along with civil and military offices.
“Part of the court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section 3,” Wallace wrote in her 102-page ruling.
Now, here’s the problem with Judge Wallace finding President Trump engaged in “insurrection” on January 6, 2021 – the former President has not been charged with engaging in insurrection and rebellion.
A federal criminal case against him in Washington charges him with conspiracy, and a similar state case in Georgia charges him with racketeering, however, the 14th Amendment does not specify a process to determine who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
So, who should decide who engaged in “insurrection or rebellion” against the United States? Is it a Democrat county judge in one of the Party’s urban strongholds, like Atlanta, Detroit or New York City?
In September 2022, a Santa Fe-based District Court became the first to remove or bar an elected official in connection with the protest at the U.S. Capitol building that disrupted Congress as it was trying to certify President Joe Biden’s purported 2020 election victory when the judge ordered Cowboys for Trump cofounder Couy Griffin removed from office.
Griffin was convicted in federal court of a misdemeanor for entering Capitol grounds on Jan. 6, without going inside the building. He was sentenced to 14 days and given credit for time served. His appeal was later dismissed by the New Mexico Supreme Court which cited missed court filing deadlines by Griffin in rejecting his appeal.
So, bottom line – the substance of the judge’s decision was never reviewed by any court above the local level – hardly a binding precedent.
Among the Democrat secretaries of state who have received letters or petitions demanding former President Trump be barred from the ballot it seems one got it fairly right.
Along with a bunch of whining and complaining about the stupidity of the law and virtue signaling that of course Donald Trump should be prohibited from running again, Arizona's Democrat Secretary of State Adrian Fontes said in August that he had no authority to keep President Trump off the state's primary ballot, because of what we think is a very sensible Arizona Supreme Court ruling.
“The Arizona Supreme Court said that because there's no statutory process in federal law to enforce Section 3 of the 14th amendment, you can't enforce it," Mr. Fontes said, adding that he thinks that is stupid, but that’s the law.
From our perspective that is not stupid at all.
The 14th Amendment was passed for a very specific moment in history. Everyone knew who bore arms against the United States in the Civil War, who fought in the Confederate Army or Navy, who served in the rebel states’ legislative, executive, and judicial branches, and who gave aid and comfort to the enemies of the United States.
And it was very rarely enforced.
For example, Wade Hampton III, one of the Confederacy’s most distinguished officers and an unrepentant White Supremacist, was a Democrat who was elected governor of South Carolina, serving from 1876 to 1879. After that, he served two terms as U.S. Senator from 1879 to 1891. Clearly, Hampton could have been barred by the 14th Amendment from holding public office, but he wasn’t.
However, Couy Griffin, who wandered up to the Capitol on January 6, 2021, but didn’t go in was.
There’s no clarity about who would be subject to the disability imposed by the 14th Amendment and be barred from public office for participation in the challenges to the 2020 election, or the events of January 6, 2021.
Were one to adopt the logic and legal reasoning of those who want to keep Mr. Trump off the ballot, then one must conclude that anyone who once took the oath to support and the defend the Constitution of the United States (me, literally every member of the armed forces, every elected official, police officer, public employee, etc.) who later supported Mr. Trump’s claims that the 2020 election was stolen would be under the same disability and, for giving aid and comfort to Mr. Trump, would be barred from public office, or even working as a letter carrier or park ranger.
The wise leaders who wrote and passed the 14th Amendment wanted to make sure leaders of the Confederacy did not resurface to resurrect the rebellion, but they also wanted to reunite the United States and heal the nation after the Civil War. Those who wish to use the 14th Amendment to keep Mr. Trump off the ballot don’t know their history, moreover, their motive is clearly to divide Americans not unite us. Their attempts to use the 14th Amendment for purposes its authors never intended should be rejected, not just by secretaries of state, but by local and state courts as well.
If Democrats want to use the 14th Amendment to keep former President Trump off the ballot, they must charge him with rebellion or insurrection in a federal court, prove it, and withstand the inevitable appeal up to the Supreme Court. They haven’t done that because they know they will rightly fail.
Blue state secretaries of state
14th Amendment Section 3
Arizona Democrat Secretary of State Adrian Fontes
Denver District Court Judge Sarah B. Wallace
Civil War Confederates
January 6 riot
Cowboys for Trump cofounder Couy Griffin
Arizona Supreme Court
Arizona Secretary of State