Updated October 30, 2023 at 11:00 AM ET
A little-known provision of the U.S. Constitution is at the center of a growing debate about former President Donald Trump's eligibility for the 2024 election, with a number of Trump opponents claiming it should prevent him from appearing on ballots next year.
The 14th Amendment was ratified in 1868, following the Civil War, and its Section 3 essentially disqualifies from office anyone who engaged in "insurrection or rebellion" against the U.S.
It was designed to prevent former Confederate leaders from serving in Congress, and got the most use in the decade or so after the war, says James Gardner, a professor at the University at Buffalo School of Law who specializes in constitutional and election law.
It's rarely been discussed — let alone invoked — since.
"Until recently, nobody would have said that there was even a real chance of a sort of a rebellion or insurrection against the United States of the kinds the amendment would deal with," Gardner tells NPR. "Now is certainly the most important context to which the provision is relevant since the 1870s."
That's because of Trump's efforts to overturn his 2020 election loss, and the events of Jan. 6, 2021, when Trump supporters stormed the U.S. Capitol to try to stop Congress from certifying the results.
Liberal groups have since tried unsuccessfully to apply the amendment to block several well-known Republican members of Congress from running for reelection over their involvement in Jan. 6.
While the activists said they intended to eventually target Trump if he sought the presidency again, and have laid the legal groundwork to do so, actually keeping him off the ballot is likely a longshot.
That's despite the House panel that investigated the Jan. 6 attack last year blaming Trump as its "central cause," and a grand jury indictment on four federal counts related to efforts to overturn the 2020 election.
The special counsel's probe is one of several criminal cases facing now-candidate Trump, who continues to dominate the Republican primary race.
And in recent months, a growing chorus of legal scholars and voters' rights groups have argued that the clause should disqualify him from the ballot.
"I think there is consensus in the legal field that it is worth looking into," Gardner says. "The questions that are difficult are exactly how that would happen."
Because the presidential election happens nationwide yet is so decentralized, individual state officials could theoretically make their own determinations about whether Trump should be on the ballot, based on their state statutes.
Election administrators in several states, including Michigan, New Hampshire and Georgia, have already said Trump's name will be on the ballot unless a court rules otherwise.
And this week provides the first foray into the courts, with a trial underway for one lawsuit seeking to block Trump in Colorado, and the Minnesota Supreme Court set to hear oral arguments later in the week.
Gardner — who personally would like to see Trump disqualified from ballots nationwide — says the issue would ideally settled by the U.S. Supreme Court in time for the upcoming election cycle.
"I think that the situation that would be most fraught is if the state courts in New York and California throw him off, but the state courts in Alabama and Georgia keep him on," he explains. "So then you'd have a disagreement among perfectly well-authorized judicial systems. ... It needs to be decided by the Supreme Court for everybody."
People disagree about whether it would be worse to ignore or confront the question, Gardner says. He believes any decision will be fateful for the U.S. as a civic society, especially in the broader context of the democratic backsliding happening here and elsewhere around the world.
Here's what else to know about the clause — how it's been used before, why it's so divisive and what might happen next.
What does the clause say?
Section 3 of the 14th Amendment reads:
The wording of the clause opens it up to a slew of definitional questions, including the meaning of insurrection, what constitutes engagement and "aid or comfort," and whether the presidency is really an "office."
For his part, Gardner argues Jan. 6 was clearly a violent insurrection against the U.S., citing the loss of life and destruction of property.
The degree of Trump's involvement is a question that people view as more murky, he says, pointing to examples like Trump's rousing speech beforehand and the Jan. 6 committee's revelation that he wanted to go to the Capitol himself.
Trump has not been charged with or convicted of insurrection, which some legal experts say weakens the case for using the provision to disqualify him. Others, like Gardner, argue a conviction isn't a prerequisite.
Gardner says Trump's March 2024 election interference trial tackles different legal issues — namely, whether he violated particular criminal statutes, not whether he violated a provision of the Constitution.
"It may be that in those trials, evidence would be produced which would be relevant to the constitutional question," he explains. "But they're really not connected."
When has it been used before?
The clause has never been invoked against a presidential candidate. It got what Gardner calls "the biggest workout" in the period immediately following the Civil War.
"What happened was Southern states, once they were readmitted, began trying to send ex-Confederate leaders to Congress," he says. "And there was a long period where Congress was refusing to seat those people."
Fast forward a century and half later to 2022, when a county official in New Mexico was removed from office because of his involvement in Jan. 6.
A judge ruled that Otero County Commissioner Couy Griffin, a Trump supporter, was disqualified from holding public office — because he violated Section 3 of the 14th Amendment — after he was convicted of entering a restricted area of the U.S. Capitol.
The liberal-leaning Citizens for Responsibility and Ethics in Washington (CREW), which sued on residents' behalf, said Griffin's was the only successful case to be brought under Section 3 since 1869. (Congress also excluded a House member after World War I, before his conviction was overturned and he was seated after winning election again.)
Another liberal group, Free Speech For People, sought to disqualify additional Trump allies, including Reps. Marjorie Taylor Greene of Georgia and Madison Cawthorn of North Carolina.
Greene remained on Georgia's ballot — and eventually won reelection — after a state administrative judge said the plaintiffs failed to prove she engaged in insurrection. And while Cawthorn lost his primary race after a string of scandals, an appeals court ruled as part of that case that participants in an insurrection against the U.S. can be barred from holding office.
Who is talking about it?
The idea to use this clause to bar Trump from the presidential ballot started gaining new traction in August, largely but not exclusively in liberal circles.
Former federal Judge J. Michael Luttig, a prominent conservative, and liberal constitutional scholar Laurence Tribe made their case in a joint opinion piece for The Atlantic. Two conservative law professors who studied the question for a year endorsed the theory in a recent New York Times interview (another scholar quoted favorably has since changed his mind).
And voters' rights organizations in two states filed lawsuits to that effect in as many weeks.
CREW is seeking to ban Trump from the ballot in Colorado, alleging he violated his oath of office by "recruiting, inciting and encouraging a violent mob that attacked the Capitol" (Trump denounced those leading the effort as "deranged ... slime balls"). Free Speech For People filed a separate, similar lawsuit in Minnesota shortly after.
And a federal judge recently rejected one such challenge by a tax attorney in Florida, saying he lacked legal standing.
One of Trump's most outspokenly critical primary challengers, former Arkansas Gov. Asa Hutchinson, said in August that Trump's actions on Jan. 6 likely violated the amendment, adding, "I'm not even sure that he's qualified under our Constitution."
Trump himself has spoken out against it. He posted on social media that the amendment has "no legal basis or standing" related to the election, and told conservative radio host Dan Bongino that "this is like a banana republic."
"What they're doing is, it's called election interference," he said. "Now the 14th Amendment is just a continuation of that. It's nonsense."
What are the arguments for and against?
The main argument for using the clause to bar Trump from reelection, legal scholar Gardner says, is "a consequence of application of the plain language of the Constitution to his behavior."
He says there are two main arguments against doing so. One is a set of technical legal arguments and factual questions that explain why his behavior might not be covered. The other is a set of concerns about what barring Trump would mean for civic peace.
"Trump supporters have now a long history of personally, viciously attacking electoral officials who do things that they don't want them to do, and this is a decision that's going to be controversial even among reasonable people," Gardner says. "So yeah, it's full of risk. And you'd have to be a pretty brave person to decide that the law requires you to disqualify Trump and then go ahead and do it."
Kim Wehle, a constitutional law scholar at the University of Baltimore who raised the 14th Amendment question in a Politico piece last year, acknowledges such a move could cause "tremendous civil unrest."
But, as she told Morning Edition in September, there is a "textual commitment in the Constitution" that should be reckoned with now, given the stakes if Trump is reelected.
"That would be, in my mind, the end of American democracy, given his stated plans for what he will do to the federal government with a cadre of loyalists making very clear that they're not willing to adhere to the electoral process in the Constitution with fidelity in the way that federal officials have to date," Wehle added.
David Frum, a former speechwriter for President George W. Bush who now writes for The Atlantic, argues that using the 14th Amendment would just perpetuate existing problems — like making it harder for secretaries of state to safeguard elections or for the public to accept their results.
"It's a reckless project, and it distracts people from the real work they have to do, which is to make sure that you are signed up to drive your friends and neighbors to the polls to save your country from a threat to democracy that isn't going to be stopped by magic words," Frum told Morning Edition.
Gardner says it boils down to this: Do we put the issue aside because the potential consequences could be so divisive and disruptive for democracy, or do we confront it because democracy means applying the rule of law to everyone, even the president?
His answer: "I wouldn't want to be a secretary of state right now making any decisions any more than I'd want to be a justice on the U.S. Supreme Court."
What might happen next?
Secretaries of state are getting questions — and pressure — from voters, leading some to affirm publicly that they plan to keep Trump's name on the ballot unless a court says otherwise.
In New Hampshire, for example, a group of GOP lawmakers wrote to Secretary of State David Scanlan, also a Republican, countering the 14th Amendment argument and asking him to ensure Trump will be on the ballot.
"Now it is time for the great leaders of the Granite State to ensure that their constituents have access to a free and fair primary election by standing against the misinterpretation and politicization of our Constitution," they wrote in the Sept. 12 letter.
The following day, Scanlan — whose state is just months away from its traditional early presidential primary — held a press conference to dismiss claims that he has the power to take Trump's name off the ballot. Doing so on a state-by-state basis would bring "chaos, confusion, anger and frustration," he said, adding that the proper venue to decide that question is the U.S. Supreme Court.
Gardner, like many, expects the issue to be resolved in court.
He says the "procedurally more solid way" to get it there would be for an election administrator to say Trump is disqualified, which would likely spark an immediate lawsuit — either from Trump, his campaign or his supporters in that particular state.
And he says it's hard to predict how the Supreme Court might rule, even with its conservative supermajority.
There is precedent for it acting quickly in an election dispute, as it did during Bush v. Gore in 2000 — but its reputation took a hit after it was perceived as meddling in the outcome. And, he adds, it could decline to intervene at all, as it did in several cases related to election procedures ahead of 2020.
Copyright 2023 NPR. To see more, visit https://www.npr.org.