[guest post by Dana]
The 14th Amendment, (Sec. 3), in part:
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…
From the report:
Six Colorado voters filed a lawsuit on Wednesday seeking to keep former President Donald J. Trump off the state’s ballots under the 14th Amendment, which says anyone who “engaged in insurrection or rebellion” against the Constitution after taking an oath to defend it is ineligible to hold office.
The lawsuit, which was filed in a state district court in Denver with the help of the watchdog group Citizens for Responsibility and Ethics in Washington, demands that the Colorado secretary of state not print Mr. Trump’s name on the Republican primary ballot. It also asks the court to rule that Mr. Trump is disqualified in order to end any “uncertainty.”
The plaintiffs are Republican and unaffiliated voters who argue that Mr. Trump is ineligible and that they will be harmed if he appears on primary ballots. They aim to ensure “that votes cast will be for those constitutionally qualified to hold office, that a disqualified candidate does not siphon off support from their candidates of choice, and that voters are not deprived of the chance to vote for a qualified candidate in the general election,” the suit says.
Several other states are facing pressure from voters to keep Trump off the ballot, including Florida, New Hampshire, New Mexico, Ohio and Wisconsin, and New Hampshire (wherein a Republican candidate has sued).
Determining what is considered engagement in an insurrection is at the heart of the suit:
The theory that the 14th Amendment disqualifies Mr. Trump has gained traction among liberals and anti-Trump conservatives since two prominent conservative law professors argued in an article last month that his actions before and during the Jan. 6, 2021, attack on the Capitol constituted engagement in an insurrection.
It’s clear from reading the report and other commentary that law professors are not necessarily in agreement about standing:
The first fork in the Colorado case will be whether individual voters have the right to sue. Challenges to a candidate’s eligibility — on any basis, not just the 14th Amendment — often come from opposing candidates, who are directly affected by the challenged candidate’s presence.
“Section 3 of the 14th Amendment is old — it has not been truly stress-tested in modern times,” said Jessica Levinson, a professor at Loyola Law School who specializes in election law. “There are some big forks in the road where you can argue both ways.”
But Derek Muller, a professor at Notre Dame Law School, emphasized that standing requirements are looser in state courts than in federal courts, especially when it comes to voters’ ability to challenge candidates’ eligibility.
“I don’t think that the standing argument is going to be a significant barrier to these claims going forward in state court,” Professor Muller said, adding that a bigger hurdle could be “ripeness”: Because candidates haven’t formally filed for ballot access yet, a judge could decide that the legal questions are not ready for review.