Courts Plunge into Uncharted Waters as Trump's Eligibility Faces Unprecedented Challenges

Washington — Efforts are underway in numerous states to keep former President Donald Trump off the ballot in 2024, and the challenges to his eligibility have plunged the courts into unfamiliar territory as they seek to navigate the application of a little known constitutional provision ratified in 1868.

Closely watched disputes in Colorado, Minnesota and Michigan have been dismissed by judges there, but voters seeking Trump's removal from the primary and general election ballots under Section 3 of the 14th Amendment have vowed to continue their fights, raising the possibility with each stage of proceedings that the Supreme Court will be asked to intervene. 

"We are in uncharted waters. It's very unpredictable," Eric Segall, a law professor at Georgia State University, told CBS News. "Whatever happens in state court, the Supreme Court, and on the actual merits of this and the procedures we're using, we're not finding the law, we're not interpreting the law, we are creating the law."

Section 3 of the 14th Amendment, also known as the disqualification clause, prohibits individuals from holding office if they have previously taken an oath as a member of Congress or as an officer of the United States and engaged in insurrection or rebellion against the Constitution.

The purpose of this clause, enacted in 1868 after the Civil War, was to prevent former Confederate civil and military officeholders from holding state or federal office again. However, it was largely forgotten until the assault on the U.S. Capitol on January 6, 2021.

In the aftermath of the January 6 attack, where a mob of supporters of former President Trump breached the U.S. Capitol in an attempt to disrupt the tallying of state electoral votes, groups of voters in Georgia and North Carolina argued that GOP Reps. Marjorie Taylor Greene and Madison Cawthorn were ineligible to run for reelection under Section 3.

An administrative law judge in Georgia concluded that there was insufficient evidence to prove that Greene engaged in insurrection and should be disqualified from the ballot. On the other hand, Cawthorn's defeat in his primary ended the challenge to his eligibility.

Meanwhile, in New Mexico, a state court judge ruled that a county commissioner must be removed from his post and is prohibited from holding any federal or state office under Section 3 due to his involvement in the January 6 riot.

The ongoing disputes

Cases brought by voters and advocacy groups that seek to disqualify Trump from running in 2024 have been brought in more than half of the states, including the cases that have gone to court in Colorado, Michigan and Minnesota, according to a compilation from Lawfare.

In Colorado, a state court judge in Denver said in a ruling Friday that Section 3 does not apply to Trump and ordered him to be placed on the presidential primary ballot. Judge Sarah Wallace wrote in her 102-page decision that Trump "incited an insurrection on January 6, 2021 and therefore 'engaged' in insurrection within the meaning of Section Three of the Fourteenth Amendment" — the first time a court has ever made such a finding — but she said was "unpersuaded" that Section 3 applies to the president under the phrase "officers of the United States."

In Minnesota, the state supreme court tossed out a case seeking to keep Trump off the ballot for the Republican primary because it is an "internal party election to serve internal party purposes," but said Minnesota voters could pursue their case after the state's March 5 primary as to the general election ballot.

And in Michigan, a judge on the state Court of Claims ruled last week that the arguments from voters there present a political question that bars consideration by the courts "at this time," and dismissed the suit.

Voters in Michigan have filed an appeal with the Michigan Supreme Court, while Citizens for Responsibility and Ethics in Washington plans to file an appeal with the Colorado Supreme Court. These appeals come after a ruling by a Colorado judge that stated Section Three of the Fourteenth Amendment does not apply to former President Trump.

Will the case reach the U.S. Supreme Court?

The cases surrounding Trump's eligibility to run for office raise important questions about the definition of an "insurrection" and whether the presidency falls under the offices covered by Section 3. Legal scholars have been debating these issues in various forums, including panel discussions, op-eds, and law review articles.

If any state high court rules that Trump is disqualified from running for office and orders his removal from the ballot, it is widely believed that he will appeal to the U.S. Supreme Court. This would bring the nation's highest court into the center of a politically charged issue during the 2024 campaign.

Consequences of Trump's Disqualification from the Ballot

According to legal experts, there is a possibility that Trump's name could be excluded from the ballot in one state if its high court determines that he is ineligible for office under Section 3 of the law. However, he could still be listed on the ballot in other states.

"While it would be unusual to have a major party candidate missing from the ballot, it is not unprecedented when it comes to down-ballot races," explained Press Millen, a trial attorney who represented voters challenging a candidate's eligibility.