Some say using the 14th Amendment to disqualify Trump is anti-democratic

As efforts to disqualify former President Donald Trump from the 2024 ballot under the 14th Amendment gather steam, some election officials are pushing back and legal scholars are arguing doing so would be anti-democratic, among other concerns.

After two members of the conservative Federalist Society endorsed the idea that he could be disqualified in the Pennsylvania Law Review, two serious challenges to Trump's eligibility have surfaced.

In Colorado, a Washington, D.C.-based watchdog group, Citizens for Responsibility and Ethics (CREW), has filed a lawsuit on behalf of six Republican and unaffiliated voters in state court. And in Minnesota, the organization Free Speech for People has filed a legal challenge on behalf of a group of voters in that state's Supreme Court.

Both challenges argue that Trump would be ineligible to hold federal office again under Section 3 of the 14th Amendment, a constitutional clause that says a candidate is disqualified if the person "engaged in insurrection or rebellion against" the United States, or had "given aid or comfort to the enemies thereof," unless granted amnesty by a two-thirds vote of Congress.

Trump has branded efforts to bar him under the 14th Amendment "election interference" and claimed he's done nothing wrong.

Some election officials from both parties oppose

While disqualification efforts have been mounted in several states, including Michigan, Virginia and Connecticut -- urging secretaries of state to remove Trump from their respective ballots -- New Hampshire Secretary of State David Scanlan, a Republican, said on Wednesday he has no legal basis to do so.

"There is nothing in our state statute that gives the secretary of state discretion in entertaining qualification issues," he said at a news conference. "If a candidate for president preferably submits their paperwork during the filing period and pays the required fee, their name will appear on the ballot."

Other Republican officials have warned against efforts to disqualify Trump, calling them extreme moves that deny voters a choice.

Georgia Secretary of State Brad Raffensperger, who found himself at the center of Donald Trump's election pressure campaign, leading to Trump's fourth indictment, and Gabriel Sterling, another Georgia elections official who has repeatedly rebuked Trump's claims of voter fraud in 2020, have both spoken out against the prospect of partisan politicians like secretaries of state disqualifying candidates.

"Invoking the 14th Amendment is merely the newest way of attempting to short-circuit the ballot box. Since 2018, Georgia has seen losing candidates and their lawyers try to sue their way to victory. It doesn't work," Raffensperger wrote in a Wall Street Journal op-ed after the Colorado lawsuit was filed.

"We have a constitutional republic of laws. We have to trust the voters in this. And anybody using an electoral scheme or a constitutional interpretation to remove anybody from the ballot is going to be a dangerous precedent," Sterling said on CNN after the petition was filed in Minnesota. "We need to have grownups through and look at the long-term implications of these things."

And on Wednesday, Michigan's Secretary of State Jocelyn Benson wrote in an op-ed in the Washington Post that only a court could rule Trump ineligible.

"Michigan, unless a court rules otherwise, Donald Trump will be on the ballot for our Republican presidential primary on Feb. 27, 2024," Benson wrote. "Whether Trump is eligible to run for president again is a decision not for secretaries of state but for the courts."

Was Jan. 6 an 'insurrection'?

Enacted in the immediate aftermath of the Civil War, Section 3 was used to disqualify from federal or state office those who held roles in the Confederacy.

But even though the mob of Trump supporters who attacked the Capitol on Jan. 6 was trying to stop the constitutional transfer of power -- one legal scholar who spoke with ABC News questioned whether that amounts to the same thing as trying to overthrow the government.

"Number one, was January 6 an insurrection within the meaning of the Constitution?" said Gerard Magliocca, an Indiana University law professor and expert on the history of the 14th Amendment.

Magliocca said that opponents of efforts to take Trump off the ballot could argue that there is no precedent for invoking the clause in the case of a relatively small-scale riot such as Jan. 6 -- compared to the South's armed rebellion.

He also said that opponents might argue that because Trump has never been criminally charged for inciting insurrection or rebellion, that weakens any case to disqualify him under the 14th Amendment.

"So, somebody could say -- I mean, and Trump will certainly say -- 'Look, it was a riot. You could describe it any number of other ways, but it's not an insurrection. It's too far removed from the Civil War to be something considered a constitutional insurrection,'" Magliocca said.

Mere verbal support for an insurrection might not be enough to prove that Trump "engaged" in insurrection or rebellion.

"Now there are efforts to interpret the word "engage" to include all manner ... of support," said Michael McConnell, professor and director of the Constitutional Law Center at Stanford Law School.

"He wasn't at the Capitol when the violence happened. He made a speech but the speech was not enough to say that he was directly involved," Magliocca suggested Trump's team might say in their defense.

Sterling, the Georgia elections official, predicts courts would find that a lack of a Trump criminal conviction would be a key reason against disqualification.

"If somebody's adjudicated -- if they're convicted, somewhere of insurrection -- that's one thing. That's not the case here and even in these other cases that are running right now. Our big concern is if you have a hung jury or is acquitted on anything, he will take his full exoneration," Sterling said.

On the other hand, McConnell argues finding Trump ineligible for office under the 14th Amendment doesn't require that he be criminally convicted of engaging in insurrection.

"I don't think that the fact that Trump has not been convicted of insurrection is an insurmountable problem, McConnell, the Stanford professor, said. "It doesn't necessarily say must have been charged with insurrection or been convicted thereof."

"You don't need a criminal charge or conviction for Section 3 to apply. None of the individuals disqualified after the Civil War were charged with a crime, or convicted of a crime," Magliocca said.

Practical concerns

Removing Trump from enough individual state ballots could be difficult, as that would be subject to countersuits and potentially unsympathetic courts -- even if the matter eventually reached the U.S. Supreme Court.

And while all of the current challenges to Trump's ballot access correspond to his candidacy in primary elections, the primaries are not actually an election to choose a president -- they're elections to choose who will be the Democratic and Republican nominees for the presidency.

"Even if a state like Colorado were to keep Donald Trump from running in the primary election, for president, there is nothing that would keep the Republican National Convention from nominating him. So, even if these groups were successful, legally, it's not clear that it would accomplish anything," said McConnell, the Stanford professor.

"All of this is exceedingly speculative. The high degree of confidence with which some people have been speaking I just think is out of place. No one really knows. And these are questions that haven't come up in 150 years. So, you know, we're all really operating in the dark," he continued.

ABC News' Hannah Demissie contributed to this report.