Legal Sidebari
Disqualification of a Candidate for the
Presidency, Part II: Examining Section 3 of the
Fourteenth Amendment as It Applies to Ballot
Access
December 28, 2023
Numerous lawsuits across the country have sought or are seeking to prevent former President Donald
Trump from appearing on state ballots for the upcoming presidential elections. In particular, these suits,
filed in both state and federal courts, are requesting that various secretaries of state exclude the former
President from the states’ ballots for the upcoming presidential primary and general elections. Plaintiffs
allege that Trump’s efforts to impede the congressional certification of the 2020 electoral college vote by,
among other things, urging his supporters to march to the U.S. Capitol on January 6, 2021, amount to
“engag[ing] in insurrection” within the meaning of Section 3 of the Fourteenth Amendment. Plaintiffs
contend that the former President is therefore disqualified as a candidate for the presidency. Many of the
lawsuits challenging Trump’s ability to be placed on state ballots have been dismissed by courts on
jurisdictional grounds without reaching the merits of the constitutional claims. On December 19, 2023,
the Colorado Supreme Court became the first court to hold that former President Trump is ineligible to
appear on the ballot because he is constitutionally disqualified from holding the office of the President,
and the court directed the Colorado secretary of state to exclude the former President’s name from the
state’s 2024 presidential primary ballot. That decision has been stayed until January 4, potentially
enabling Trump the opportunity to appeal the decision to the U.S. Supreme Court before it goes into
effect. (As of the date of this Sidebar, the Colorado State Republican Central Committee has reportedly
filed a petition of certiorari with the U.S. Supreme Court challenging the state court ruling.)
This Legal Sidebar is Part 2 in a two-part series examining how Section 3 of the Fourteenth Amendment
applies to ballot access by a presidential candidate. It discusses the eligibility requirements for a candidate
to be placed on the ballot for the presidency and the application of Section 3 to the 2024 presidential
elections. Part 1 focuses on the meaning of Section 3 as it applies to the presidency, including a discussion
of the recent case disqualifying Trump from the ballot in Colorado, Anderson v. Griswold. For further
background on Section 3, including whether it requires implementing legislation from Congress to take
effect, see this Legal Sidebar and this Legal Sidebar.
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Justiciability of Lawsuits Challenging Ballot Access
The Supreme Court has held that federal courts must address jurisdiction as a “threshold matter” when
evaluating a lawsuit. The issue of standing, which involves a showing that a court has jurisdiction to hear
the matter, requires the party seeking relief from the court to demonstrate that he has a “personal stake” in
the outcome. This concept is established under Article III, which limits the federal courts to exercise their
judicial power only in “cases” or “controversies.” In federal courts, a litigant bears the burden of
establishing standing by demonstrating three elements: (1) an “injury-in-fact,” which is “an invasion of a
legally protected interest” that is “(a) concrete and particularized, and (b) actual or imminent not
conjectural or hypothetical;” (2) that the injury is traceable to the alleged acts being challenged; and (3)
that the injury is likely redressable by a favorable judicial decision.
Other justiciability doctrines also inform a court’s decision to hear a case, including determining whether
a claim is yet ripe for adjudication or, conversely, whether the dispute has been rendered moot. Even if
standing and justiciability requirements are otherwise met, courts may decline to hear cases for prudential
or other reasons. For example, the political question doctrine directs courts to forbear from resolving
questions when doing so would require them to make policy decisions, exercise discretion beyond their
competency, or encroach on powers constitutionally vested in the legislative or executive branches.
In one of the first cases challenging Trump’s candidacy, the U.S. District Court for the District of
Columbia did not reach the merits of the plaintiff’s argument that the Federal Election Commission (FEC)
should reject Trump’s statement of candidacy for the presidency because of “his alleged involvement in
the events of January 6, 2021, at the U.S. Capitol.” The district court decided that the plaintiff failed to
establish standing. Specifically, the court found that the plaintiff, “an FEC-registered 2024 Republican
primary presidential candidate,” did not establish that he had standing to sue, because, assuming without
deciding that he had a viable injury-in-fact, he failed to establish the remaining elements—that the injury
was traceable to the FEC and was redressable by the court. Other federal courts determining whether
Trump is eligible to run in the 2024 presidential elections have also determined that the plaintiffs lacked
standing and, at least in one case, decided that the plaintiff’s claim appeared to raise a nonjusticiable
political question.
For cases brought in state courts, a state’s laws establish the elements that must be met to demonstrate
standing. As the Supreme Court discussed in Asarco Inc. v. Kadish, “the constraints of Article III do not
apply to state courts, and accordingly, the state courts are not bound by the limitations of a case or
controversy or other federal rules of justiciability even when they address issues of federal law, as when
they are called upon to interpret the Constitution.... ” For example, the Minnesota Supreme Court
concluded that the petitioners have “standing and that their claims are ripe as to the issue of whether
former President Trump should be excluded from the 2024 Republican presidential nomination primary.”
Eligibility to Be Placed on the Ballot for the Presidency
Federal elections are primarily administered according to state laws. Article I, Section 4, clause 1, of the
U.S. Constitution, known as the Elections Clause, gives the states the initial and principal authority to
administer “the times, places and manner of” congressional elections within their jurisdictions. For
presidential elections, a parallel constitutional provision, known as the Electors Clause in Article II,
Section 1, clause 2, provides that “[e]ach state shall appoint” electors for President and Vice President “in
such Manner as the Legislature thereof may direct.” In addition, the Qualifications Clause of the
Constitution in Article II, Section 1, clause 5, requires the President to be a natural-born citizen, at least
thirty-five years of age, and a resident of the United States for at least fourteen years.
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Under these constitutional authorities, states have enacted varying laws that specify prerequisites for
presidential candidates to appear on election ballots, which are known as ballot access requirements.
Generally, states enact ballot access requirements to prevent ballot overcrowding, voter confusion, and
election fraud and to facilitate election administration. While recognizing that ballot access laws affect
voters’ “basic constitutional rights,” the Supreme Court has determined that states “have an interest, if not
a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies.”
Select State Court Decisions on Trump’s Ballot Access
Dozens of lawsuits have been brought in federal and state courts that allege that Trump is constitutionally
disqualified from holding the office of the President and seek to prevent his name from appearing on 2024
presidential primary or general election ballots. Several of these lawsuits have been dismissed either
voluntarily by the plaintiffs or by reviewing courts on standing or justiciability grounds, without reaching
the merits of the constitutional claims. Several lawsuits, however, remain pending.
A few state supreme courts have issued rulings on legal challenges to the former President’s eligibility to
be on the states’ election ballots. The Minnesota Supreme Court dismissed a legal challenge to Trump’s
placement on the state’s presidential primary ballot while allowing the plaintiffs to potentially bring suit
at a later date regarding Trump’s placement on the general election ballot. Likewise, the Michigan
Supreme Court denied review of the dismissal of a challenge to Trump’s placement on the primary ballot
on ripeness grounds. The Colorado Supreme Court, in contrast, held that the former President was
disqualified from again holding the office of the President under Section 3 of the Fourteenth Amendment,
and it directed that his name be omitted from the state’s presidential primary and general election ballots.
Because these judicial decisions turn on the application of both state and federal law, only some aspects
could be appealed to the U.S. Supreme Court. While the Supreme Court may review these decisions to the
extent they concern questions of federal law, including as to the meaning of the Disqualification Clause or
whether a state election law comports with constitutional requirements, the state courts are the final
arbiters on the meaning of laws enacted by their states, including those allowing plaintiffs to bring suit in
state court.
Minnesota: Growe v. Simon
In this case, the petitioners filed a petition under Minnesota law seeking an order declaring Trump
disqualified from holding the office of President of the United States pursuant to Section 3 of the
Fourteenth Amendment and directing the Minnesota secretary of state to exclude Trump from the ballot
for the presidential nomination primary and general election. On November 8, 2023, the Minnesota
Supreme Court dismissed the case.
After concluding that the petitioners had standing and that their claim as to whether Trump should be
excluded from the ballot for the primary election was ripe, the court determined that the claim for
excluding him from the general election ballot was neither ripe nor likely to occur. Under Minnesota
statute, individuals are allowed to petition the court seeking “the correction of ... errors, omissions, or
wrongful acts which have occurred or are about to occur” in the election process. The court held that there
is no error “to correct here as to the presidential primary election,” finding that there is “no state statute
that prohibits a major political party from placing on the presidential nomination primary ballot, or
sending delegates to the national convention supporting, a candidate who is ineligible to hold office.” The
court dismissed the petition without prejudice, which allows the petitioners to bring another claim
regarding the general election at a later date.
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Colorado: Anderson v. Griswold
In Anderson v. Griswold, several Colorado voters petitioned the court to direct the Colorado secretary of
state to prevent Trump from appearing on the primary or any subsequent ballot as a candidate for
President in 2024. The former President moved to transfer the case to federal court, which was denied. He
and the Colorado State Republican Central Committee moved to dismiss the case on a number of
grounds, including that the secretary of state “does not have authority to preclude the placement of
Defendant Trump on Colorado’s ballot pursuant to U.S. Const. amend. XIV, Sec. 3” under relevant state
statutes. On October 20, 2023, the district court judge, in an omnibus ruling, discussed the legal
framework pertinent to Colorado ballot access law and held that “C.R.S. § 1-1-113 is the exclusive
vehicle for ... challenges” to a candidate’s qualification to hold office under the Constitution.
On November 17, 2023, a state district court held that then-President Trump engaged in an insurrection as
defined under Section 3 but determined that Section 3 does not apply to Trump, therefore declining the
petition to bar Trump’s name from appearing on the ballot. The plaintiffs and Trump appealed to the
Colorado Supreme Court.
On December 19, 2023, by a 4-3 vote, the Colorado Supreme Court partially affirmed and partially
reversed the district court. The court held that Trump is disqualified under Section 3 from holding the
office of President, and therefore, “it would be a wrongful act under the Election Code” for the Colorado
secretary of state to include his name as a candidate on the 2024 presidential primary ballot. However, the
court stayed its decision until January 4, 2024 (the day before the Colorado secretary of state is required
to finalize the ballot), or, if the decision is appealed, until the U.S. Supreme Court issues a ruling. (Trump
has said he plans to appeal to the U.S. Supreme Court, and the Colorado Republican State Central
Committee has reportedly already filed a petition of certiorari to challenge the ruling.)
Before reaching the merits in this case, the Colorado Supreme Court held that Sections 1-4-1204 and 1-1-
113 of the Colorado election code permit plaintiffs to challenge Trump’s status as a candidate based on
Section 3. According to the court, a state has the constitutional authority to evaluate presidential
qualifications so long as its legislature has statutorily provided for such authority. Quoting future Justice
Neil Gorsuch in an opinion written when he was a judge on the U.S. Court of Appeals for the Tenth
Circuit, the court observed that it is “a state’s legitimate interest in protecting the integrity and practical
functioning of the political process [that] permits it to exclude from the ballot candidates who are
constitutionally prohibited from assuming office.” Further, the court concluded that the electors in this
case properly stated a claim under Colorado law and that, notwithstanding “the expedited procedures” of
Section 1-1-113, the law “provides sufficient due process for evaluating whether a candidate satisfies the
[requisite] constitutional qualifications.” The court also held that Section 3 is self-executing and does not
require Congress to enact implementing legislation and that the political question doctrine does not
preclude judicial review of a candidate’s qualifications for office under Section 3.
Turning to the merits, the court held that Section 3 applies in this case because, based on a textual analysis
of Section 3, the President is an officer of the United States and the presidency constitutes an office under
the United States. The court also determined that the district court did not err in determining that
President Trump committed an insurrection. (For further discussion of the Colorado court’s analysis of the
merits, see Part 1 of this Sidebar).
Three justices each wrote separate dissents, with two justices arguing that Section 1-1-113 of the
Colorado election code does not provide for adequate due process. Specifically, Chief Justice Brian
Boatright criticized the electors’ claim for being made “without a determination from a proceeding (e.g., a
prosecution for an insurrection-related offense) with more rigorous procedures to ensure adequate due
process.” In addition, Justice Carlos Samour characterized the district court proceeding in this case as
lacking “basic discovery,” the power to compel witnesses and subpoena documents, “workable
timeframes,” and “the opportunity for a fair trial.” Justice Samour further argued that most other states
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will not be able to enforce Section 3 because they lack similar election laws, which will result in Trump’s
disqualification from the ballot in only some states, “thereby risking chaos in our country.”
Author Information
Jennifer K. Elsea
Juria L. Jones
Legislative Attorney
Section Research Manager
L. Paige Whitaker
Legislative Attorney
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