Trump needs to be left off the ballots throughout country

As U.S. election officials gear up for the 2024 Presidential election, judges in over a dozen states could decide whether the 14th Amendment’s Section 3 disqualifies former President Donald Trump from future office. Recently, the Colorado Supreme Court removed candidate Trump from the state’s 2024 ballot, finding that the safeguard covers the office of U.S. President and that Trump personally engaged in insurrection. Trump has already appealed to the Supreme Court.

Even before the Colorado decision, a letter from state lawmakers to the New York State Board of Elections called upon the bipartisan Board to apply the Constitution’s “disqualification clause” and exclude Trump’s name from New York’s 2024 presidential primary and general election ballots. But without explicit statutory authority and a process for determining that weighty question, it’s unclear whether the commissioners will act independently. Fortunately, new legislation clarifying the process for deciding candidate eligibility in New York can be taken up immediately when lawmakers return this month.

If states and courts fail to resolve the question before the 2024 contests, it could be disastrous for democracy because the eligibility issue would remain unsettled. If Trump were re-elected, the matter would ripen for a post-election determination via litigation or congressional nullification that could tear the country apart.

The states added the Constitution’s disqualification safeguard in response to the Civil War to prevent government officials who had defected to the Confederacy from holding “any office, civil or military, under the United States, or any State” if they previously had taken an oath to support the U.S. Constitution and had subsequently “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Far from a postbellum relic, this standard has already been applied to the deadly Jan. 6, 2021, attack at the U.S. Capitol to remove and bar a New Mexico official from holding future office.

As co-founder of the American Constitution Society, Professor Laurence Tribe explains, the disqualification clause isn’t limited to situations where states secede from America but also regulates the eligibility of former officeholders who block the peaceful transfer of power under Article II of the Constitution. The conservative, longtime Republican federal appellate Judge J. Michael Luttig agrees that the clause prohibits Donald Trump from holding office again because it operates “upon those who betray their oaths to the Constitution,” which includes “waging war on our government by attempting to overturn a presidential election.”

Conservative constitutional experts affiliated with the Federalist Society have concluded that Trump is legally ineligible to serve, regardless of the public’s divergent political views about his fitness for office.

These experts agree that the prohibition is self-executing and “can and should be enforced by every official, state or federal, who judges qualifications.” But putting aside the thorny politics of barring one of the major parties’ likely nominees from seeking the presidency, one legal sticking point is that few state election codes specifically prescribe the process by which this question of candidate eligibility should be decided.

While the state Board of Elections is no stranger to answering controversial ballot-access questions, it is notorious for ignoring or deadlocking on matters that deeply divide the parties. That’s untenable here.

The one-term 45th President left office in disgrace in 2021, never publicly conceding his resounding defeat to Joe Biden in both the Electoral College (306 to 232) and the popular vote, where he lost by more than 7 million valid ballots (51.3 percent to 46.9 percent.

While the failure of a U.S. presidential candidate to acknowledge their defeat, ensure an orderly transition, and help bring together a deeply polarized nation was both unprecedented and damaging to American democracy, it wasn’t the absence of sportsmanship that today animates the eligibility question. It’s also not directly due to Trump’s 2022 call to terminate the Constitution and reinstall him to the Presidency. However, this admission against interest compels us all to take him seriously and, this time, accurately contextualizes the stakes.

Instead, it was the centrality of the former President’s role and participation — publicly and behind the scenes — in a series of increasingly desperate election-related lies and criminal schemes that culminated in his incitement of a deadly coup attempt at the Capitol on Jan. 6, 2021, as his vice president presided over the end-stage — the counting of electoral votes. This successfully disrupted the peaceful transfer of power and could have ended the U.S. Constitutional order by overturning the clear will of the American people.

However, without a statutory framework, administrators are reluctant to interpret the Constitution on their initiative. The Secretaries of State in New Hampshire, Ohio, Minnesota, and Michigan have said they won’t act on their own to prevent Trump, who presently faces 91 felony counts, from appearing on their states’ ballots.

While those cases could ultimately result in a nationwide determination on the eligibility question, without an explicit statute, there’s no guarantee it will. A law that directs state officials to consider the 14th Amendment issue before certifying candidates for the primaries would bring the issue to a head.

More broadly, government officials-turned-insurrectionists  — having violated their oath and, as in this case, abused the democratic process itself — cannot be permitted to run for office under the Constitution. Because the former President transgressed one, if not all, of those grave prohibitions, the states and the courts must act now to uphold constitutional democracy.

Assemblyman Jeffrey Dinowitz represents the 81st Assembly District in the Bronx. Jarret Berg is an attorney, voting rights advocate, and nonpartisan Vote Early New York co-founder.