In addition to prosecutions, there are widely reported efforts to keep Donald Trump off the ballot on the argument that he is barred under the 14th Amendment (emphasis added):
Section 3.No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.***Section 5.The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
There are many legal problems with these maneuvers, particularly the theory being advance that state and local election officials on their own can implement such a bar. The Daily Caller covered the issue, in which I am quoted:
A Democratic-aligned group is seeking to bar former President Donald Trump from the ballot in key states through the 14th Amendment, according to a Wednesday press release.Free Speech For People is arguing that Trump violated Section 3 of the 14th Amendment due to alleged incitement of the Jan. 6 Capitol riot and should be disqualified from running for a second term, according to a press release. The group has encouraged the secretaries of state in New Hampshire, New Mexico, Florida and Ohio, as well as election commission members in Wisconsin, to remove the former president from the ballot in 2024….
Hans von Spakovsky, manager of the Election Law Reform Initiative and Senior Legal Fellow for The Heritage Foundation, told the Daily Caller News Foundation that the novel legal argument “is not a valid claim,” citing a paper he wrote last year.
“Section 3 of the 14th Amendment is no longer in effect because Congress passed two amnesty acts in 1872 and 1898 as it is allowed to do under that Section to remove the disabilities imposed by Section 3,” Spakovsky said. “Moreover, Donald Trump has never been convicted of ‘insurrection or rebellion’ by any court and not by Congress either in the impeachment proceedings that were attempted against him. These attempts to disqualify him from the ballot are unconstitutional.”Trump isn’t charged with insurrection or inciting the riot on Jan. 6 in the two indictments that involve alleged interference in the 2020 election, in Washington, D.C. by Special Counsel Jack Smith and in Georgia by Fulton County District Attorney Fani Willis, William A. Jacobson, Cornell Law School professor and founder of EqualProtect.org, told the DCNF.
“The Second Impeachment of Trump by the House of Representatives did charge him with inciting insurrection, but he was not found guilty by the Senate. Empowering state or local officials on their own to make a determination of what constitutes insurrection would wreak havoc on our constitutional presidential electoral system, amounting to the undermining of elections that gave rise to claims of ‘insurrection’ against Trump,” Jacobson said.
“What would stop local Republican officials from determining on their own that Joe Biden’s refusal to enforce our southern border amounts to an ‘insurrection’ against the United States? We would be faced with a free-for-all in which the constitutional system of presidential elections is undermined by local political power,” he added.
There’s a reason Democrats are so desperate to enable state and local election officials to act on their own – they face the same legal problem to challenging Trump appearing on the ballot that Trump faced in challenging the 2020 election results: Standing.
A lawsuit brought by Florida lawyer Lawrence Caplan and two others in the U.S. District Court for the Southern District of Florida tried to get the court to rule that Trump was disqualified under section 3 of the 14th Amendment and 18 USC 2383. From the First Amended Complaint:
Petitioner now comes before this honorable Court seeking declaratory relief on the specific issue of whether candidate Donald J. Trump is indeed constitutionally prohibited from seeking a second term as President of the United States. Encompassed within this request for declaratory relief is a further determination as to whether candidate Trump is indeed even eligible to participate in the upcoming Florida Republican Party Primary scheduled for next spring in 2024….In carefully analyzing this language embedded in the Constitution, numerous legal scholars have wrangled with the preeminent issue of whether an actual conviction is necessary to trigger the prohibition of running for office. This so-called “disqualification clause” has been determined to operate completely independently of any pending criminal proceedings and also independent of any impeachment proceedings or congressional legislation. Former federal judge Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit and noted legal scholar Laurence Tribe have both come to the inescapable conclusion that the “disqualification clause” was designed to operate directly and immediately upon this certain individuals who betray their oaths to the U.S. Constitution, whether by taking up arms to overturn our government or by waging war on our federal government by attempting to overturn the results of a presidential election through a bloodless coup.President Trump’s efforts both in Washington, as well as in Georgia and perhaps other states, as well as the consequential assault on the US Capitol, put Trump at the center of the disqualification clause, and as a result of which, make him ineligible to ever serve in federal office again. Now given that the facts seem to be crystal clear that Trump was involved to some extent in the insurrection that took place on January 6th, the sole remaining question is whether American jurists who swear an oath to uphold the US Constitution upon their entry to the bench, will choose to follow the letter of the Constitution in this case….The bottom line here is that President Trump both engaged in an insurrection and also gave aid and comfort to other individuals, such as the Proud Boys and Oath Keepers who were engaging in such actions, within the clear meaning of those terms as defined in Section Three of the 14th Amendment. Assuming that the public record to date is accurate, and we have no evidence to the contrary, Trump is no longer eligible to seek the office of the President of the United States, or the office of any other state of the Union. Trump has legally forfeited that right as a result of his specific actions which have led to his indictment on several charges after thorough investigation by the Special Counsel.As such, this Court having the innate power to rule as to the tenets of the U.S. Constitution, is abjectly required to find that Donald J. Trump’s actions with respect to the January 6th uprising, and specifically the fact that he has been indicted for said acts, have effectively disqualified him from seeking the office of the President of the United States, and effectively barred him from participation in the Florida Republican primary for President next spring. While Petitioner fully understands that his seeking this declaratory judgment places great pressure on the jurists who will be tasked with hearing this case, we believe that the law is abundantly clear as to the issues at bar, is entirely self-executing in nature, and that if the jurists are ready to follow the specific language of the US Constitution in this regard, the decision should be a relative easy one to make.
This was not the most professional of pleadings. It was more like an op-ed. But it would not have mattered even if it were done more professionally.
The docket does not reveal a motion to dismiss having been filed, but it appears the Judge took it upon herself to throw out the complaint for lack of standing, which deprived the court of “subject matter jurisdiction.” Subject matter jurisdiction is non-waivable and prevents parties from going to federal court — even if they both want to — unless the constitutional and statutory grounds for invoking federal court jurisdiction are alleged. The federal courts can throw a case out at any time in the process, even at trial, if it turns out there is no federal jurisdiction, and judges are supposed to examine the case on their own to satisfy themselves that it belongs in federal court.
So the court here on it’s own entered an Order of Dismissal on August 31, 2023, dismissing the case for lack of standing:
…. The Court concludes that it lacks subject matter jurisdiction and dismisses the Complaint….As explained below, the Court exercises its discretion to dismiss the Amended Complaint for lack of jurisdiction because Plaintiffs lack standing.This Court has “an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party.” … Inquiry into standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” … “A generalized interest of all citizens in constitutional governance does not suffice to confer standing on one such citizen.” … To have standing, a plaintiff must show he has a “personal stake” in the alleged dispute and that the injury is “particularized” to him.Here, Plaintiffs lack standing to challenge Defendant’s qualifications for seeking the Presidency, as the injuries alleged are not cognizable and not particular to them. Plaintiffs allege that they have standing because Plaintiff Caplan has actively participated in the last twelve Presidential elections, voted for both Republicans and Democrats, is a Florida resident and United States citizen, is an attorney and member of various courts, and has never been sanctioned. DE 1 at 2. Plaintiffs further allege that Plaintiff Butin is a Florida resident and United States citizen and Plaintiff Strianese is a Nevada resident and United States citizen. Id. Plaintiffs allege they will suffer injury if Defendant is allowed to run for President and prevail when he could be disqualified or removed from office. Id. at 2-3. However, an individual citizen does not have standing to challenge whether another individual is qualified to hold public office. See, e.g., Kerchner, 612 F.3d at 207; Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009).Further, at least two courts have concluded that citizens attempting to disqualify individuals from participating in elections or from holding office based on the January 6, 2021 events at the United States Capitol lacked standing. See, e.g., Stencil v. Johnson, 605 F. Supp. 3d 1109 (E.D. Wis. 2022). In Stencil, the plaintiffs sought a declaratory judgment that three members of Wisconsin’s Congressional delegation were ineligible to serve under the Fourteenth Amendment because their participation in the January 6 attack constituted an insurrection against the United States. Id. at 1112-13. Among other things, the court determined that the plaintiffs lacked standing and explained that “[e]very citizen and voter could claim to have suffered the same injury as the plaintiffs here, which amounts to nothing more than engaging in political advocacy against candidates for office or issue advocacy against the views the candidates hold. The relief that the plaintiffs seek would no more directly and tangibly benefit them than it would the public at large.” Id. at 1117. See also Hill v. Mastriano, No. 22-2464, 2022 WL 16707073, at *1 (3d Cir. Nov. 4, 2022) (plaintiff seeking declaratory judgment disqualifying defendant from running for governor based on January 6, 2021 events lacked standing, rendering claim subject to dismissal). The Hill court also noted that “the appropriate process for testing title to public office” is a writ of quo warranto, which must be filed in the United States District Court for the District of Columbia and may only be filed by the sovereign or a representative thereof. See id. at *2; D.C. Code § 16-3503; Drake, 664 F.3d at 784-85.Plaintiffs in this case similarly lack standing and, thus, this Court lacks jurisdiction. Accordingly, the Court exercises its discretion under the Declaratory Judgment Act, along with its obligation to examine its own jurisdiction, to dismiss this case.
Are the attempts to get judicial decisions keeping Trump off the ballot over? Of course not, but this is another sign that such attempts are likely to be unsuccessful. Hence the urging for state and local election officials to go rogue on their own, which of course then would be the subject of more lawsuits.
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