If Donald Trump wants to be on the ballot next year in all 50 states, he might first have to win an unprecedented courtroom battle over the “insurrection clause” of the 14th Amendment.
Under a legal theory that’s gaining traction among Democrats and anti-Trump Republicans, that seldom-used clause arguably disqualifies Trump from ever holding office again due to his attempts to undermine the 2020 election and his role in stoking the attack on the Capitol on Jan. 6, 2021.
There are two ways the theory might be tested. One strategy is for politicians, advocacy groups or even ordinary voters to file lawsuits seeking judicial declarations that Trump is ineligible to run. This strategy is already in its infant stages, with two obscure plaintiffs filing lawsuits in New Hampshire and Florida in recent days.
The other, more politically perilous option would be for one or more states to embrace the theory outright and simply refuse to list Trump on their ballots. That might force Trump to file his own lawsuits asking courts to order his candidacy restored in those states. So far, no state has moved to bar Trump from the ballot, though secretaries of state around the nation are discussing the issue among themselves.
Either scenario could thrust the courts, and likely the Supreme Court, into an unsettled debate over the meaning of the insurrection clause, a long-winded 110-word provision that was ratified in 1868 and has rarely been interpreted — or even invoked — since then. [Continue reading…]