Running for president of the United States might seem straightforward: Meet the age requirement, be a natural-born citizen and live in the country for 14 years. But as former President Donald Trump’s eligibility takes center stage, court cases across several states, including a pivotal ruling from Colorado, have turned the spotlight on a lesser-known aspect of the Constitution: Section 3 of the 14th Amendment.
Ratified in the wake of the Civil War, the amendment includes a clause preventing anyone who has “engaged in insurrection or rebellion against the (United States)” from holding public office. The provision, crafted to protect the nation in a time of division, is now at the forefront of legal battles determining who can and cannot appear on ballots. But state laws and procedures play key roles in these cases as well.
The Colorado Supreme Court recently ruled that the 14th Amendment disqualifies Trump from serving as president again, and that he cannot appear on the state’s primary ballot. Trump asked the U.S. Supreme Court on Wednesday to overturn that decision, and an expedited resolution is expected.
The amendment’s interpretation has become a key point as courts face the complex task of applying 19th century language to 21st century politics.
The States’ Role
Colorado’s Supreme Court reached its conclusion based on a state statute that stipulates, “The only candidates whose names shall be placed on ballots shall be those who,” among other things, submit a statement of intent to the secretary of state and who are then certified by the secretary. The court held that the secretary of state’s duty to certify candidates and confirm their statements of intent requires the secretary to ensure that candidates are eligible for office before placing them on the ballot. Following this logic, the court held that Colorado law prohibits Secretary Jenna Griswold from placing an ineligible candidate on the primary ballot.
For now, Trump will be on Colorado’s GOP primary ballot; the Colorado ruling is on hold while the U.S. Supreme Court decides whether Trump is eligible. The justices will hear arguments on Feb. 8. This helps avoid significant timing issues—Colorado law requires the secretary of state to certify primary ballot language by Jan. 5.
Even in states without that deadline, primary ballots, like all ballots, must be mailed to overseas voters 45 days prior to an election, creating printing and mailing deadlines well ahead of each state’s primary election. That means timing is of the essence.
In Maine, the secretary of state—not a court—decided that Trump is disqualified from appearing on the state’s primary ballot under the 14th Amendment and under Maine law, which requires candidates to file a consent form prior to the primary election declaring “that the candidate meets the qualifications of the office the candidate seeks.” The law explicitly states, “If ... any part of the declaration is found to be false by the Secretary of State, the consent and the primary petition are void.” Maine’s secretary of state, Shenna Bellows, disqualified Trump, determining that he falsely certified he was eligible for office because, in her determination, he was disqualified by the 14th Amendment. The Trump campaign is challenging this decision in a Maine state court.
Same Question, Different Conclusions
Colorado and Maine have occupied the national spotlight, but they are not the only states grappling with this question—and other states have decided differently.
In Michigan, the state Supreme Court upheld a lower court ruling that said the secretary of state has no authority to determine whether Trump is qualified under the 14th Amendment; under Michigan law, the secretary’s role in placing candidates on the ballot is purely “ministerial.” Without determining Trump’s constitutional qualifications, the court held that he must appear on Michigan’s primary ballot because state law says “the secretary of state shall cause the name of a presidential candidate ... to be printed on the appropriate presidential primary ballot.” Secretary Jocelyn Benson, therefore, has no discretion to decide whether a candidate is eligible—she must simply place him on the ballot.
In November, the Minnesota Supreme Court declined to answer the question of whether Trump is qualified to serve under the 14th Amendment. That court decided the question must wait for the general election because primary elections are internal to political parties.
The U.S. Supreme Court will almost certainly make the final decision on the federal constitutional questions about Trump’s eligibility.
State law, however, has driven the consideration of Trump’s eligibility thus far. Under rulings to this point, Colorado law requires Griswold to decide whether a candidate is eligible to run in the primary; Michigan law prohibits Benson from doing so. Maine law explicitly directs Bellows to disqualify any candidate who does not meet the eligibility requirements for office. Minnesota law leaves no role for Secretary Steve Simon until the general election ballot is being assembled.
That’s a sample of four states’ laws—and each is different. Lawmakers may want to explore questions about ballot qualifications in their state—for both general and primary elections. If they find ambiguity, they hold the power to clarify.
Helen Brewer is a policy specialist in NCSL’s Elections and Redistricting Program.