Today, Secretary of State Shenna Bellows of Maine reported her decision to remove Donald Trump from her state’s presidential ballot. Trump is disqualified under Section 3 of the Fourteenth Amendment, she concluded. Many had assumed a decision like could only come from the courts, but that’s wrong.

Disqualification is first and foremost the responsibility of state election officials

In 1868, Georgia Governor Rufus Bullock refused to commission a former Confederate elected to Congress, under the 14th Amendment: an executive action, like Secretary Bellows’ today, not a court decision

The Fourteenth Amendment does not call for conviction or any sort of judicial process. Rather, if Trump’s actions related to January 6 disqualified him, it happened automatically, three years ago. In that case, state election officials should refuse to put Trump on the ballot. That’s what Secretary Bellows has done. In other words, the duty to remove a disqualified candidate falls first on state officials who run elections, particularly the secretary of state.

None of this means courts play no role. As I pointed out in an earlier post, the issue lands in court when:

1. 1. an election official excludes a candidate and he or she sues to get onto the ballot, claiming the Fourteenth Amendment doesn’t apply – or someone else impacted by the decision sues (e.g., a political party); or
   2. an election official refuses to remove a candidate, or just moves too slowly, and citizens or other impacted parties sue, claiming the candidate must be removed under the Fourteenth Amendment.

The former will no doubt happen in Maine. Trump or the GOP will sue the Secretary Bellows, and the courts will (probably) decide whether she was right. The latter happened in Colorado. Members of the state Republican Party (technically, “eligible electors”) sued the secretary of state, demanding Trump’s removal. And of course, they won (subject to appeal). The other cases so far fit into the second category too: citizens suing the secretary of state. (Some are pending while others were dismissed because the plaintiffs lacked “standing,” as explained in yesterday’s post. For an update on all the disqualification cases, see The Trump Disqualification Tracker from The Lawfare Institute.)

The courts, in other words, judge disqualification-related decisions made by government officials. They don’t judge disqualification as an initial matter.

The congressional safety valve

The courts’ role has another limit. The Fourteenth amendment has a safety valve – a way to overcome disqualification – but it’s in Congress’ hands, not the courts’.

The great seal of the State of Maine (adopted 1820)

Many have argued that the courts should not permit disqualification because the voters should decide – or because of Trump supporters’ certain anger and the related political fallout. Courts have no such authority. They can only answer the legal question: is Trump disqualified under Section 3 of the Fourteenth Amendment? (I think another Trump administration would do far more harm than disqualification fallout, no matter how extreme, but that’s a separate issue.)

Congress does have authority to address the political fallout from disqualification – and to return to the question to the voters. The last sentence of Section 3 reads: “But Congress may by a vote of two-thirds of each House, remove such disability.” That is the amendment’s political safety valve.

Congress used the safety-valve repeatedly in the late 19th century, allowing former Confederates to hold office. Today’s Congress could do the same for Trump but probably won’t. Too many Democrats and Republicans oppose him and what he stands for. But that authority – the power to let the voters decide – belongs to the House and Senate, not the justices of the Supreme Court or any other judge.

© 2023 by David W. Tollen. All rights reserved.