Where the effort to remove Trump from Oregon’s 2024 ballot stands

Efforts to remove former president Donald Trump from the 2024 ballot are under way in multiple states, including in Oregon. The challenges rest on an obscure clause of the 14th Amendment that prohibits anyone who has “engaged in insurrection or rebellion” from holding federal office. It’s unclear whether the clause applies to the presidency, but groups in Colorado and Maine successfully argued that Trump’s actions after the 2020 election disqualify him from running for office.

Oregon Secretary of State LaVonne Griffin-Valade has said she doesn’t have the authority to bar Trump from the primary ballot. But the Oregon Supreme Court is expected to rule in the coming weeks on a suit that seeks to oust him from the 2024 contest.

Norman Williams is a professor at Willamette University who teaches election and constitutional law. He’s been following the litigation in Oregon and elsewhere, and joins us to talk about the details.

The following transcript was created by a computer and edited by a volunteer:

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. We end today with efforts to remove former president Donald Trump from 2024 ballots. These efforts are underway in a number of states, including in Oregon. The challenges rest on a clause in the 14th Amendment of the U.S. Constitution. It prohibits anyone who has “engaged in insurrection or rebellion against the United States” from holding various elected offices. The Secretary of State in Maine and the Colorado Supreme Court have found the argument persuasive. They say that the former president cannot be on their primary ballots. Oregon Secretary of State LaVonne Griffin-Valade said about a month ago that she does not have the authority to do that. The U.S. Supreme Court is going to be the final arbiter in all of these questions nationwide. All of these different cases have been appealed in various places. Norman Williams teaches election and constitutional law at Willamette University College of Law and he joins us to talk about all of this. Welcome back to the show.

Norman Williams: Good morning. Thank you for having me.

Miller: It’s good to have you on. So the text of this constitutional provision is written - and maybe this is not unusual - in a convoluted way. So I’ve made it as clear as I can. It basically says that if you engage in insurrection or rebellion against the United States or help the enemies of the United States, after having taken an oath to support the U.S. Constitution as a member of Congress or while holding various other elected offices, then you cannot be a member of Congress or hold any office, civil or military, under the United States or under any state. So that’s a version of the text of it.

When and why was this amendment added to the U.S. Constitution?

Williams: Great question. So this amendment was added in 1868 in the immediate aftermath of the Civil War. And this particular provision of the 14th Amendment was designed to prevent former Confederates who had served in Congress prior to the Civil War from being reelected either to Congress or from serving in any office in any of the southern states, after the southern states were readmitted. The notion was that those Confederates had been disloyal to the United States, to their oath of office to support the United States and they shouldn’t be part of the American political life going forward.

Miller: So 155-156 years ago, in the aftermath of probably the greatest cataclysm our country has ever known. How much has this provision been applied or enforced since then?

Williams: Not much. The framers of the 14th Amendment expressly made it for more than just former Confederates. There was talk about applying it just to the Confederates, but they worded it in a prospective fashion to apply to future insurrections or rebellions. And there have been instances as recently as 1920 in which individuals have been held, disqualified from office, because of participating either in insurrection or rebellion or by giving aid or comfort to the enemies of the United States. The most recent example was in 1920, and involved someone who had been viewed as providing support to Germany in World War I.

Miller: That seems like a relatively clear cut case, if somebody was seen to have been providing support to a country that the United States was fighting against in a World War.

Williams: That’s right. And one of the issues that President Trump is using in his defense against this measure is that January 6th was not an insurrection. And that what he said on January 6th was not tantamount to engaging in the insurrection even if it was one. And that’s a much more difficult question than whether someone has provided arms to an enemy combatant with whom we’re at war.

Miller: I want to turn back to the question of whether or not what President Trump did on January 6th or in the weeks leading up to it, would qualify as an insurrection. We can come back to that and how courts either have addressed it head on or may address it going forward. But I want to turn for a second back to the language of the provision. How significant is it that it does not specifically mention the office of the president?

Williams: It’s going to be a difficult question that the U.S. Supreme Court is going to ultimately have to address, because again, President Trump is emphasizing that the word ‘President of the United States’ is not mentioned as one of the offices from which you’re disqualified from holding office. Nor is it mentioned as the type of person who can be disqualified from holding office in the future. And it is a notable admission from the text that ‘President of the United States’ doesn’t appear in Section 3. The Colorado Supreme Court though, and the Maine Secretary of State was not persuaded that that omission should be given any credence, that the text of Article 3 does refer to any office under the United States, refers to someone who had been an executive, an officer of the United States who had taken the relevant oath from being disqualified. And more importantly, made the common sense judgment that the framers of Section 3 wanted to disqualify individuals who’d been disloyal to the United States, even in fairly insignificant roles, such as a member of state legislature or judicial officer of any state.

Surely, the framers of the 14th Amendment weren’t trying to authorize a disloyal future president, that if they were going to disqualify former Confederates from being U.S. senators, they surely didn’t want former Confederates being President of the United States.

Miller: Is the thinking - say, Grant, or the then dead Lincoln, as the most recent examples of presidents - that the framers just wouldn’t have envisioned that a U.S. President would have engaged in insurrection against their country? I mean, does it even matter to try to get into the heads of the framers of these provisions?

Williams: No, you’re exactly right. And this is precisely the argument that both the Colorado Supreme Court and the Maine Secretary of State seized upon, that the intent of the framers of Section 3 was clear, which is that someone who’s been disloyal to the United States after taking an oath to support the Constitution, shouldn’t be able to hold any office. And that the phrase ‘any office under the United States’ includes the presidency as well. And so, the presidency, just like Congress, is an office that someone is disbarred from ever holding once they’ve been disloyal.

Miller: Now there is one more line in this provision that I didn’t read before because it was already long. But I want to turn to it now. It says that basically, even if you did engage in an insurrection, even if you were found to have been liable under the previous parts of the paragraph, you can, in a sense, have it be washed away and you can serve in the future if there’s a two-thirds vote in both chambers of the Congress, meaning that the House and the Senate. Has that ever happened?

Williams: Yes. Congress has used its amnesty authority on multiple times, following the wake of the Civil War. In fact, it passed a general amnesty, basically relieving all former Confederates of this disqualification several decades after the Civil War. And Congress has used this amnesty power kind of individually as well in the wake of the Civil War. I mean, fortunately, because until January 6th we haven’t suffered an insurrection or rebellion prior to January 6th for a long, long time, Congress hasn’t had the occasion to use its amnesty authority in over a century.

Miller: But it’s fascinating to me that even the exact people that this provision was put in the Constitution to prevent from serving, there was a blanket amnesty a couple of decades later and large majorities in Congress said, no, you all can serve.

Williams: That’s right. And at the time, it was viewed as part of the end of reconstruction of let’s put the Civil War behind us. Let’s just move on. The notion that the Confederacy, or former Confederates, were gonna take over the United States, that fear had dissipated by that point.

It’s interesting to note that President Trump is relying upon this provision, both in Oregon and in his arguments to the United States Supreme Court, seeking review from the Colorado decision. President Trump is suggesting that hey, next January, Congress would remove this disability if he’s elected. And that’s one of his arguments for why he should be allowed to remain on the ballot, that Congress could use its amnesty authority next January to remove this disqualification.

Miller: The fact that they can does not mean at all. I mean, it seems like a gross misreading of political realities to assume that a single Democrat would make that vote, but we’ll set that aside.

So let’s turn squarely to Oregon, because we’ve been talking about U.S. constitutional questions. But, at the state level, what does Oregon law say about who can appear on a ballot and who can prevent them from being on a ballot?

Williams: So Oregon requires candidates for office to state, as part of their petition for the candidacy or statement of candidacy, that they will qualify for the office. And so, former secretaries of state have used that provision to disqualify from the ballot individuals who, in their opinion, were not qualified to serve in the office. The most recent example is Nicholas Kristof, who was going to run for the Democratic Party’s nomination for the governorship, who was disqualified by the Secretary of State on the grounds that he wasn’t a resident of Oregon, that he was a resident of New York instead. And so this disqualification from the ballot authority has been used by the Secretary of State in the past.

Miller: What was the current Oregon Secretary of State’s reasoning back in November when she declined to bar Donald Trump from Oregon’s primary ballot?

Williams: So the current Secretary of State drew a distinction between state offices generally and the presidential nomination. In particular, the Secretary of State Griffin-Valade made the argument that, well, the presidential nomination is special because you’re not actually nominating Donald Trump. What you’re really doing is nominating a bunch of individuals whose names don’t appear on the ballot, who will be delegates pledged to Donald Trump to attend the Republican National Convention. And the Republican National Convention might not even choose Donald Trump as its nominee. And so the presidential nomination process in Oregon is not really choosing a nominee for the office. It’s just choosing delegates for a national convention. And so she reasoned she didn’t have the authority to decide whether his name should appear on the May primary ballot.

Miller: Could that same sort of understandable, but slightly convoluted reasoning be applied even to the general election, given the electoral college realities?

Williams: That’s exactly right. That in November in the general election, we’re not actually electing Joe Biden or Donald Trump or whoever the nominees might be. We’re electing individuals, whose names do not appear on the ballot, who will serve as prejudicial electors pledged to that person. So, to carry the Secretary of State’s kind of logic to its logical conclusion, the Secretary of State has no authority in a presidential contest to not include someone’s name on the ballot. And that, I think, is kind of a dangerous way to go, because what the Secretary of State’s position is essentially saying is that a court might disqualify this individual, but I can’t. And if I don’t, that leaves the voters unable to make a real choice on either the primary ballot or the general election ballot, because it will be only after that election that some court has to decide this question.

Miller: Even if you set aside questions of whether it’s your name on the ballot that really matters as a candidate or a slate of electors, the 14th Amendment, it doesn’t talk about being on the ballot for a primary or a general election. It talks about people not being able to hold office. Are those the same thing from the perspective of constitutional law?

Williams: They are because we want the people to choose the officers, executive, legislative, judicial. Only a hypertechnical lawyer could love a legal framework in which a person ineligible to serve in the office is nevertheless put on the ballot, potentially elected, but then disqualified by a court after the fact.

Miller: A hypertechnical lawyer or somebody who doesn’t want to be seen as replacing the will of the voters, which does seem to be one of the big arguments that, in this case, a Democratic Secretary of State, even if she’s not making it, it’s possible that that’s in her mind, that she doesn’t want to be seen as a person who is removing choice from voters.

Williams: That’s right. But that’s what qualifications for office do. The United States Constitution provides other qualifications for the presidency. You have to be 35 years old. You have to be a citizen, a natural born citizen of the United States. You had to be a resident of the United States for 14 years. The people don’t get the choice to put on the Oregon ballot or in any state, an 18-year-old as a candidate for president of the United States. And so qualifications for office by their very nature, disable the people from choosing someone that they might want to choose. And Section 3 of the 14th Amendment disqualifies from office, individuals who’ve served an office before but been disloyal to the United States.

Miller: Well, let’s turn back to the one of the most important…once you get past some of the technicalities of the weirdness of our electoral system, there is still at the heart of this provision, the question of people who have engaged in an insurrection or a rebellion against the U.S. How much helpful precedent is there for what engaging in an insurrection means?

Williams: Great question and the answer is virtually none. Again, what an insurrection is hotly debated. We can use the Civil War as an example, but Section 3 refers to rebellion as something different than an insurrection. And so the Civil War was viewed as a rebellion. The January 6th Committee of Congress, which investigated the events of January 6, 2021, concluded that January 6th was, in fact, an insurrection, but that is not a self defining term. And President Trump’s lawyers have made arguments that while January 6th was really more just a demonstration, or at worst a riot, that it didn’t rise to the level of an insurrection. And so this is kind of one of the key issues that the U.S. Supreme Court will have to decide.

Miller: What are you expecting from the U.S. Supreme Court?

Williams: Yeah, we’ll hopefully find out tomorrow, or Monday, whether the Supreme Court is going to hear the appeal from the Colorado Supreme Court. And if so on what timeline…

Miller: Would you be surprised if they didn’t take it up? I mean, the sense I’ve gotten for years is that when there are disagreements from state to state and on important questions it’s the exact time when the court is most likely to say yes, we will be the final arbiter, unless there are reasons they don’t want to weigh in.

Williams: That’s exactly right. And I would be shocked if they don’t take this case because if they don’t take this case now, taking it later would only be even further into the midst of the primary campaign. And not taking it at all seems inconceivable that the court would allow this patchwork, this quilt of Trump appearing on the ballot in some states but not in other states, that wouldn’t be healthy for democracy or for our constitutional system of government. There needs to be a definitive answer as to whether former President Trump is disqualified from future office and only the U.S. Supreme Court can give that answer, and it should give that answer sooner rather than later.

Miller: Are you expecting a substantive ruling from the Roberts Court that addresses head on whether or not the former president engaged in insurrection, or something more like the Obamacare case or other cases where the court tries to answer the question in a just sort of legal detail way, that somehow parries?

Williams: It really depends on what they hold, if a majority of them are prepared to hold that President Trump is not disqualified from office. There are three ways for them to do so without having to answer the question, whether January 6th was an insurrection, and it goes back to what we were talking about before. Is the president subject to this disqualification as a former president, a person whose disloyalty could disqualify them? And there’s a third issue which is again, also pretty hypertechnical, that the presidential oath is not the type of oath of loyalty that can be the subject of disqualification. President Trump has emphasized that Section 3 only applies to officers who’ve taken an oath to support the constitution. The president doesn’t take that oath. The presidential oath only talks about preserving and defending the constitution, not supporting it.

So the U.S. Supreme Court might say, well, the presidency is not an office from which you can be disqualified, end of story, and not address whether January 6th was an insurrection. For President Trump to be deemed disqualified, to kind of take this hypothetical, if we think that there are five justices or more of the current U.S. Supreme Court prepared to disqualify him, they have to decide whether January 6th was an insurrection or not. And so it all depends on what is the ultimate result that the U.S. Supreme Court wants to reach as to how many of these legal arguments they will discuss.

Miller: Norman Williams, thanks very much.

Williams: Thank you for having me.

Miller: Norman Williams is a professor at Willamette University’s College of Law.

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