Donald Trump’s campaign team is preparing for a state-by-state legal battle later this year over untested claims that a Civil War-era clause in the U.S. Constitution bars the former president from appearing on Republican primary ballots because of his role in the Jan. 6, 2021, insurrection.
Two nonprofit groups who do not disclose all their donors, Citizens for Responsibility and Ethics in Washington (CREW) and Free Speech For People, have prepared multipronged legal strategies to challenge Trump across the country under Section 3 of the 14th Amendment. They have written letters to state election officials calling on them to block Trump from the ballot, while separately preparing voter lawsuits and state election board complaints.
Section 3 — ratified in 1868 to punish Confederate officials after the war — disqualifies any “officer of the United States” from future public office who, after taking an oath to support the U.S. Constitution, has “engaged in insurrection or rebellion against” the country. Attorneys at both groups argue that Trump’s role before and during the Jan. 6 riot is evidence he “engaged in insurrection,” a claim that was specifically endorsed by the House select committee that investigated the attack.
“It is a strategy designed to enforce the Constitution to bar Trump from serving as president,” CREW chief counsel Donald Sherman said of the legal efforts. “We have had two major insurrections in this country. One was the Civil War, which gave rise to Section 3. And one was Jan. 6.”
But there is little recent legal precedent to guide courts on how to apply Section 3. Opponents of the effort are likely to argue that state elections officials have a ministerial role that does not allow them to bar candidates under the constitution, according to attorneys familiar with the issues. They will likely also argue that Trump did not engage in an “insurrection,” that Section 3 should not apply to a candidate before an election and that there needs to be an act of Congress to enforce Section 3. Legal scholars have also raised questions about whether a former president who has never served in another office counts as an “officer” under the clause.
“What these undemocratic organizations are doing is blatant election interference and tampering,” Trump campaign spokesman Steven Cheung said in a statement. “They are not even trying to hide it anymore and it is sad they want to deprive the American people of choosing Donald Trump — the overwhelming front-runner by far — as their President. History will not judge them kindly.”
Opponents also warn of the damage judges or election officials would do to the electoral process if they intervene to deny Republican voters the option of choosing Trump after much of the campaign season has passed. The Section 3 challenges cannot be filed until Trump applies for or is granted ballot access late this year, attorneys say, giving the courts just a matter of months to decide on the merits of the claim before votes are cast in the nomination fight.
“The practical implications of this is the greatest disruption of our electoral system that has been contemplated since the Civil War,” said James Bopp, a conservative attorney who represented two members of Congress last year whose ballot access was unsuccessfully challenged under Section 3. “On a practical level, this is so cynical and would be so destructive, it is actually in my view beyond comprehension.”
The political implications of the coming fight, meanwhile, are difficult to predict. Several of Trump’s Republican rivals have signaled that they will make Trump’s electability in a general election an issue, an argument that could be aided by courtroom drama about his role in Jan. 6. Lawyers on both sides of the issue say if a judge ruled that Section 3 applies in any state, the case would likely be immediately appealed to federal court and potentially fast-tracked to the Supreme Court for review.
Efforts to boot Trump from the ballot could also further solidify Republican support behind the former president, echoing Trump’s boost in polls and fundraising that accompanied his recent indictment by a New York prosecutor this month on charges of falsifying business records to cover up hush money payments to an adult-film star. Republican rivals would also be pressured to file amicus briefs supporting Trump in the legal fight, Trump advisers argue.
“This is a prime example of election interference. They are writing Donald Trump’s message themselves,” said one Trump campaign adviser who spoke on the condition of anonymity to discuss the strategy to push back. “The question is really what judge is going to grant any one of these states the ability to interfere with the American electoral process … We are very aware of the task before us.”
The adviser said the Trump team expects legal challenges in blue states such as California, New York, Connecticut, Oregon, Maryland, Massachusetts, Washington and Michigan. But the groups have not ruled out a far broader strategy, and some attorneys studying the issue have pointed to North Carolina and Georgia as ripe targets for a Section 3 challenge.
Both CREW and Free Speech For People are nonpartisan nonprofits that are not required by law to disclose their donors, but they have a long history of working in concert with Democratic policy priorities. LinkedIn founder Reid Hoffman, a major Democratic donor who opposes Trump’s reelection, has given money to support Free Speech For People’s work on this issue, according to a person familiar with the donation who spoke on the condition of anonymity since the gift had not been disclosed.
Free Speech For People has also been working with Mi Familia Vota, a Latino voting group that ran ads against Trump in the 2020 election. The group has launched a campaign to pressure Colorado Secretary of State Jena Griswold, who is the chair of the Democratic Association of Secretaries of State, to prevent Trump from appearing on that state’s ballot because of Section 3, with an upcoming rally scheduled for April 26 in Denver.
Griswold’s office did not respond to requests for comment.
“The Latino community and the immigrant community became target number one during his administration,” Mi Familia Vota’s executive director Hector Sanchez Barba said. “This is so important to us as an organization.”
Ron Fein, the legal director of Free Speech For People, said his group has reached out to elections officials in all states to prepare the groundwork for legal challenges. He helped lead Section 3 challenges last year against Reps. Madison Cawthorn (R-N.C.) and Marjorie Taylor Greene (R-Ga.). The Cawthorn case was dismissed after he lost his primary for reelection, and the Greene case ended in defeat when a judge ruled that her actions after taking the oath of office did not constitute engaging in an insurrection.
Fein said the fact pattern about Trump’s role in Jan. 6 is more clear.
“Our goals are to force Donald Trump to answer questions under oath about his involvement in the January 6 insurrection, and to obtain court decisions holding that he is disqualified from public office and excluding him from the ballot,” Fein said in a statement.
CREW successfully represented a group of New Mexico residents last year in a case that ended with a state judge disqualifying Otero County Commissioner Couy Griffin from office under Section 3 because of his role in the events of Jan. 6. The judge found that Griffin “engaged in insurrection” by working to mobilize people for violence at the Capitol, breaching the Capitol police barricades and then joined the crowd in chants as they attacked the building. The New Mexico Supreme Court dismissed Griffin’s appeal of the ruling.
Free Speech For People has since drafted a declaration that secretaries of state could use to bar Trump from the ballot. The draft notes that Congress has described Jan. 6 as an insurrection, as have multiple courts around the country. The draft also cites legal precedent from 1869 and 1871 that held, like the New Mexico court, that a person does not have to commit violence to be found to have engaged in insurrection.
Gerard Magliocca, a law professor at Indiana University, has written extensively on Section 3 and advised both groups now seeking to apply the clause to Trump. He has noted that Section 3 was clearly applied to Jefferson Davis, the former president of the Confederate States, who did not fight personally in the Civil War and was not convicted of a crime.
Magliocca said the ongoing Justice Department investigation of Trump for his role in the Jan. 6 attack could also factor into how courts, including the Supreme Court, view the Section 3 claim.
“I think there will be some judicial decisions saying he is ineligible,” Magliocca said. “If he is indicted in these other cases, that increases the possibility that you can find five justices who will be interested in disqualifying him.”