Disqualification of a Candidate for the Presidency, Part II: Examining Section 3 of the Fourteenth Amendment as It Applies to Ballot Access
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 April 4, 2024
On March 4, 2024, the U.S. Supreme Court in Trump v. Anderson issued a per curiam opinion that
unanimously held that the Colorado Supreme Court erred in ordering former President Trump excluded
from the 2024 presidential primary ballot and that Congress, not the states, is responsible for enforcing
Section 3 of the Fourteenth Amendment (Section 3) against federal candidates and officeholders. The
Court held that Section 5 of the Fourteenth Amendment “empowers Congress” to determine “who”
Section 3 applies to for purposes of federal officeholders and candidates, as Section 5 enables Congress to
pass “appropriate legislation” to enforce the Fourteenth Amendment. As a result of the Supreme Court’s
ruling, states do not have the authority under Section 3 to exclude candidates for federal offices from
election ballots. The Court’s opinion did not rule on several issues addressed by the Colorado Supreme
Court, including whether, under Section 3, the President is “an officer of the United States” who had
“previously taken an oath ... to support the Constitution,” whether the political question doctrine
precludes judicial review, and what actions constitute insurrection under the Fourteenth Amendment.
In numerous lawsuits and administrative actions across the country, challengers had sought to prevent
former President Trump from appearing on state ballots. Specifically, the lawsuits, filed in both state and
federal courts, requested that various secretaries of state exclude the former President from the states’
ballots for the 2024 presidential primary and general elections. The challengers alleged 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, amounted to “engag[ing] in
insurrection” within the meaning of Section 3. The challengers contended that the former President was
therefore disqualified as a candidate for the presidency.
Many of the lawsuits challenging former President Trump’s ability to be placed on state ballots were
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 former President Trump
ineligible to appear on the ballot, finding that he was constitutionally disqualified from holding the office
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of the President, and directing the Colorado secretary of state to exclude the former President’s name
from the state’s 2024 presidential primary ballot. In a similar case, the secretary of state of Maine
determined on December 28, 2023, that Mr. Trump was ineligible to appear on Maine’s presidential
primary election ballot, and Trump appealed that decision to the Maine Superior Court. On February 28,
2024, Illinois became the third state to determine that Mr. Trump was ineligible to appear on the
presidential ballot because he had engaged in an insurrection. The Supreme Court’s ruling in Trump v.
Anderson effectively invalidates multiple state decisions, including those in Illinois and Maine, and it
precludes any related litigation that was pending at the time of the Court’s ruling.
This Legal Sidebar is Part 2 in a two-part series examining Section 3 of the Fourteenth Amendment and
its application to ballot access by a presidential candidate. It begins by discussing the justiciability of
various lawsuits that challenged ballot access. Next, it discusses the Colorado Supreme Court’s decision
and the Supreme Court ruling in Trump v. Anderson, as well as other related state court decisions and
administrative actions relating to Section 3 of the Fourteenth Amendment. Part 1 focuses on the meaning
of Section 3 as it applies to the presidency. For further background on Section 3, see this Legal Sidebar.
Eligibility to Be Placed on the Ballot for the Presidency
Federal elections are administered primarily 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.”
Procedural History and Colorado Supreme Court Ruling
in Anderson v. Griswold
The litigation in the Colorado case, first called Anderson v. Griswold, began when several Colorado
voters petitioned the Colorado Supreme 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 Mr. Trump, therefore declining
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the petition to bar 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.)
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 was appealed, until the U.S. Supreme Court issued 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 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 indicated that the Court’s decision may determine if votes for the former President are
counted. On February 8, 2024, the U.S. Supreme Court heard oral arguments in the case.
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Supreme Court Ruling in Trump v. Anderson
In a per curiam decision issued on March 4, 2024, the Supreme Court unanimously ruled in Trump v.
Anderson that Congress is responsible for enforcing Section 3 of the Fourteenth Amendment against
federal candidates and officeholders. In reaching its decision, the Court emphasized that the enactment of
the Amendment increased federal authority “at the expense of state autonomy.” The Court held that
Section 3, which provides for the disqualification of certain individuals from holding various offices
rather than grants rights to all individuals, “was designed to help ensure an enduring Union by preventing
former Confederates from returning to power in the aftermath of the Civil War.” The Court underscored
that Section 5 of the Fourteenth Amendment “enables Congress, subject of course to judicial review, to
pass appropriate legislation to enforce” the Amendment, including the provisions of Section 3.
Characterizing Section 5 as “critical when it comes to Section 3,” the Court quoted a Senator who stated
at the time the Amendment was crafted that Section 5 “casts upon Congress the responsibility of seeing to
it, for the future, that all the sections of the amendment are carried out in good faith.”
The Court further explained that permitting a state rather than Congress to enforce the provisions of
Section 3 “raises serious questions” about the scope of Congress’s power under Section 5. The Court held
that Section 5’s remedial nature in limiting congressional legislation to enforce Section 3 necessarily
requires that Congress “tailor its legislative scheme to remedying” the prohibitive conduct and that any
enforcement legislation must “reflect ‘congruence and proportionality’ between preventing or remedying
that conduct ‘and the means adopted to that end.’” The Court held that any state enforcement of Section 3
against a candidate seeking federal office would not be derived from Section 5, as this section confers
power only to Congress. The Court asserted that any notion to the contrary “is simply implausible.”
While states have the authority to enforce Section 3 against state candidates and officeholders, the Court
held that states do not enjoy such power over federal candidates and officeholders and particularly not
over the President. Quoting its 1995 ruling in U.S. Term Limits v. Thornton, the Court observed that
federal officeholders “owe their existence and functions to the united voice of the whole, not of a portion,
of the people” and hence, “powers over their election and qualifications must be specifically delegated to,
rather than reserved by, the States.” The Court observed that the Constitution fails to provide the states
with any such authority to enforce Section 3 over federal officeholders and candidates and that state
enforcement of Section 3 with respect to the office of the President raises “heightened concerns.”
Further, the Court warned of the resulting “patchwork” if each state could enforce Section 3. Such
disparities in enforcement, the Court announced, “would sever the direct link that the Framers found so
critical between the National Government and the people of the United States as a whole.” For example,
states could reach conflicting decisions regarding a candidate’s eligibility, under different state laws,
standards of proof, and rules of evidence. In presidential elections, the votes cast or not permitted to be
cast in one state affects the votes cast in other states, the Court observed, and such an “evolving electoral
map could dramatically change” how voters, political parties, and states behave. The resulting
“disruption” would be worse, the Court said, if enforcement of Section 3 occurred after the election.
The Court disagreed with the notion that the Elections Clause and the Electors Clause, discussed above,
“implicitly” delegate Section 3 authority to the states, determining that such an interpretation “would
invert” the Fourteenth Amendment’s balance of power between the states and the federal government. In
support of its determination, the Court observed that Section 3 provides Congress with the power to
“remove” a Section 3 “disability” by a vote of two-thirds in the House and Senate and does not provide
limits on that power. The Court held that interpreting Section 3 to authorize the states to exclude
candidates from the ballot would lead to the “implausible” result that Congress could exercise its
authority to remove a Section 3 disability only before the election to have any meaningful effect.
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Justice Barrett wrote a partial concurrence and concurred in the judgment, joining all but part II-A of the
Court’s opinion. While agreeing with the Court’s holding that states do not have the power to enforce
Section 3 against a presidential candidate, Justice Barrett emphasized that, unlike the Court majority, she
would have made no further determinations. Specifically, Justice Barrett deemed it unnecessary for the
Court to answer “the complicated question whether federal legislation is the exclusive vehicle through
which Section 3 can be enforced.”
Justices Sotomayor, Kagan, and Jackson wrote separately to concur in the judgment. The three Justices
agreed with the Court’s decision, observing that permitting the states to exclude a presidential candidate
from the ballot would “create a chaotic state-by-state patchwork, at odds with our Nation’s federalism
principles.” The three Justices believed that this conclusion was “enough to resolve this case” but that the
majority chose to resolve “novel constitutional questions to insulate this Court and petitioner from future
controversy.” The Justices, who characterized the Court’s ruling as announcing that “a disqualification for
insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of
the Fourteenth Amendment,” believed that the per curiam decision precluded other potential methods for
federal enforcement of Section 3.
Other Select State Court Decisions and Administrative
Actions Regarding Ballot Access
Prior to the U.S. Supreme Court’s ruling, state supreme courts had issued rulings on legal challenges to
the former President’s eligibility to be on the states’ election ballots. The Michigan Supreme Court, for
example, denied review of the dismissal of a challenge to Mr. Trump’s placement on the primary ballot on
ripeness grounds. 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. On March 4, following the Trump v. Anderson decision, the Minnesota secretary of state issued a
statement indicating that Mr. Trump will stay on the ballot in that state. That same day, the Maine
secretary of state withdrew an earlier determination that Mr. Trump was ineligible be on the state’s
presidential primary ballot and announced that votes cast for Mr. Trump during the March 5 primary
election will be counted. Similarly, a February 28, 2024, ruling by an Illinois circuit court judge denying
the former President ballot access stayed the order until the U.S. Supreme Court issued a decision that
was inconsistent with the ruling. Therefore, for the March 19, 2024, Illinois presidential primary election,
former President Trump appeared on the ballot.
Author Information
L. Paige Whitaker
Juria L. Jones
Legislative Attorney
Section Research Manager
Jennifer K. Elsea
Legislative Attorney
Disclaimer
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