Legal Sidebari
Disqualification of a Candidate for the
Presidency, Part II: Examining Section 3 of the
Fourteenth Amendment as It Applies to Ballot
Access
Updated January 10, 2024
On February 8, 2024, the U.S. Supreme Court is set to hear oral arguments in Trump v. Anderson, a
challenge to the Colorado Supreme Court’s decision that former President Donald Trump is disqualified
from future office under Section 3 of the Fourteenth Amendment (Section 3). The Supreme Court stated
that the question presented in this case is whether the Colorado Supreme Court erred in ordering President
Trump excluded from the 2024 presidential primary ballot.
Numerous other lawsuits and administrative actions across the country have sought or are seeking to
prevent former President Trump from appearing on state ballots for the upcoming presidential elections.
In particular, the lawsuits, 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. Other challengers are asking state secretaries of state to deny Mr. Trump ballot access
under their respective state laws. Challengers allege that Mr. 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. Challengers contend that the former President is therefore disqualified as a candidate for the
presidency.
Many of the lawsuits challenging former President 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. After the Supreme Court agreed to
review the case, the Colorado secretary of state announced that Mr. Trump would be listed on the primary
ballot but said the Supreme Court’s decision may determine whether votes cast for him are ultimately
counted. In a similar case, the secretary of state of Maine determined on December 28, 2023, that Mr.
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Trump is ineligible to appear on Maine’s presidential primary election ballot, and Mr. Trump has appealed
that determination to the Maine Superior Court.
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 Mr. 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.
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 of the defendant 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 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 Mr. 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 Mr. 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 Mr.
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.”
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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.
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 [their] 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 Mr. 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 Mr.
Trump’s placement on the state’s presidential primary ballot while allowing the plaintiffs to potentially
bring suit at a later date regarding Mr. Trump’s placement on the general election ballot. Likewise, the
Michigan Supreme Court denied review of the dismissal of a challenge to Mr. 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 Mr. 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 Mr. Trump from the
ballot for the presidential nomination primary and general election. On November 8, 2023, the Minnesota
Supreme Court dismissed the case.
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After concluding that the petitioners had standing and that their claim as to whether Mr. 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.
Colorado: Anderson v. Griswold
In Anderson v. Griswold, several Colorado voters petitioned the court to direct the Colorado secretary of
state to prevent Mr. 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 Mr. Trump, therefore declining
the petition to bar Mr. Trump’s name from appearing on the ballot. The plaintiffs and Mr. 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 former President Trump is disqualified under Section 3
from again holding the office of President.
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 Mr. 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.)
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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, Colorado 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, Colorado 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 will not be able to enforce Section 3 because they lack similar election laws, which will result
in Mr. Trump’s disqualification from the ballot in only some states, “thereby risking chaos in our
country.”
In deciding that former President Trump was disqualified from holding future office, the Colorado
Supreme Court held that “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. On
December 27, 2023, the Colorado Republican Party appealed the ruling to the U.S. Supreme Court,
arguing, among other things, that the President is not covered by Section 3 and that Section 3 is not self-
executing. On January 3, 2024, Mr. Trump likewise appealed the court’s ruling to the Court, arguing,
among other things, that Congress is the appropriate body to decide the eligibility of a presidential
candidate and not a state court. On January 5, 2024, the Supreme Court agreed to hear the case on
February 8, 2024, and ordered an expedited briefing schedule. The Colorado secretary of state announced
that, as a result of the U.S. Supreme Court agreeing to review the case, Mr. Trump would be on the state’s
2024 presidential primary ballot, but she indicated that the Court’s decision may determine if votes for the
former President are counted.
Maine Secretary of State’s Decision on Trump’s Ballot
Access
On December 28, 2023, Maine’s secretary of state determined that former President Trump is disqualified
from holding the office of President under Section 3 and, accordingly, denied him access to Maine’s
presidential primary election ballot. Specifically, the secretary ruled in response to three challenges she
received as to the nomination petition of Donald J. Trump for the Republican primary for President of the
United States, which were filed under Maine statutes, 21-A M.R.S. §§ 336 and 337. As the secretary
explained, Maine law requires that, in preparing the ballots for a presidential primary election, she must
ascertain whether a candidate’s primary election petition and candidate consent form comport with the
requirements of Maine law, which is subject to challenge and appeal. Under Maine law, the candidate
consent form requires a declaration that the candidate meets the qualifications for the office sought, which
is verified by the candidate’s oath or affirmation. If, in accordance with the challenge procedures, the
secretary determines that the declaration is false, the candidate consent form and primary election petition
are considered “void.” In this case, the secretary found that the challengers met their burden of proving
that Mr. Trump’s declaration of qualification is false and, therefore, concluded that his primary election
petition “is invalid.”
The secretary further determined that she holds the authority to deny presidential primary election ballot
access to unqualified candidates. She observed that, consistent with the Elections Clause and the Electors
Clause of the U.S. Constitution, states have the authority to regulate their ballots. While states cannot
establish new qualifications for the presidency, she explained that states can create their own unique
processes that exclude candidates who are constitutionally unqualified. Hence, under that authority, the
secretary of state concluded that the Maine legislature has “statutorily obligated” her to determine if
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candidates are qualified and, if not, to limit their access to the Maine primary ballot. The secretary,
referencing the short time frame involved, ballot preparation deadlines, the novel questions of
constitutional law, and the importance of the case, suspended the decision until after either the Maine
Superior Court rules or the deadline to appeal under Maine state law has passed.
On January 2, 2024, former President Trump appealed the Maine secretary of state’s decision to the
Maine Superior Court. Among other things, he alleged that the secretary of state was biased, provided him
with insufficient due process, acted without legal authority under Maine law, committed several errors of
law, and took arbitrary and capricious actions, all of which resulted in Mr. Trump being “illegally
excluded from the ballot.”
Author Information
Jennifer K. Elsea
Juria L. Jones
Legislative Attorney
Section Research Manager
L. Paige Whitaker
Legislative Attorney
Disclaimer
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