Why are the 14th Amendment lawsuits seeking to bar Trump failing?

Legal challenges seeking to bar former President Donald Trump from appearing on primary or general election ballots in 2024 under Section 3 of the 14th Amendment are steadily getting dismissed in courts around the country.

Across more than a dozen states, petitioners have claimed Trump, the Republican Party’s presidential front-runner, should be disqualified from running because of his actions around the Jan. 6, 2021, attack on the U.S. Capitol and efforts to overturn his 2020 election loss.

Those actions, they say, violate a clause of the Constitution that bans people from holding any federal or state office if they previously held office, swore an oath to the Constitution, and then engaged in “insurrection or rebellion” against the United States.

More than seven challenges have failed — most notably in Colorado, Michigan and Minnesota — due to court rulings ranging from procedural inconsistencies, questions about whether the judicial branch had power to enforce the ban and dispute over whether the president is considered an “officer of the United States” as required by Section 3 of the 14th Amendment.

None of the challenges has been upheld thus far.

Legal experts told ABC News that the “insurrectionist ban” – a seldom-invoked constitutional provision, ratified after the Civil War to keep former Confederate rebels from being elected to government roles — sets a very high bar to take a candidate off the ballot.

That’s due in part, they say, to a number of previously undecided questions, including whether Section 3 is considered “self-executing”– meaning that elections officials wouldn’t need special permission from lawmakers to disqualify Trump from the ballot — or the precise application and definition of the “officer” language in the provision.

The lawyers ABC News spoke with also said that varying timelines regarding individual states’ primary ballot certification processes are a barrier to disqualifying Trump under the clause.

“It may simply be that the court didn’t say the lawsuit is wrong — it’s that you brought the lawsuit at the wrong time, with the wrong official,” said Mark Graber, a constitutional scholar and law professor at the University of Maryland, He submitted an amicus brief on behalf of those challenging Trump’s eligibility — in an appeal now being considered by the Colorado Supreme Court. It’s unclear when the court will issue a ruling.

Some also said the challenges could have been rejected because of the “anti-democratic” argument – that judges might be weary of meddling with voters’ options in the 2024 election, especially if the matter hinges on a such a politically charged question.

“I can’t imagine that judges are eager to do this. Even judges who may not like Trump — judges in Michigan or Minnesota or Colorado — realize that people have a right to vote for the candidate of their choice,” said Josh Blackman, one of two conservative law professors who authored the widely cited paper that popularized the argument that Section 3’s reference to “an officer of the United States” does not include the president. Blackman wrote an amicus brief in support of Trump making that argument ahead of the Colorado Supreme Court hearing.

“When you’re relying on this very old provision of the Constitution which has a lot of difficult legal questions involved, a better path is just to … let the voters decide this issue,” he added. “Who wants to be the judge that disqualifies the leading presidential candidate on the Republican ticket? I mean, who wants to be that judge?”

The “officer” issue

On Wednesday, the Supreme Court of Colorado heard oral arguments in an appeal of a lower court judge’s ruling rejecting a challenge to Trump’s ballot eligibility in that state. In September, a Washington, D.C.-based watchdog group, Citizens for Responsibility and Ethics (CREW), filed a lawsuit on behalf of six Republican and unaffiliated voters seeking to bar Trump from the primary ballot under the amendment’s disqualification clause.

Denver District Court Judge Sarah B. Wallace ruled against the group, deciding on Nov. 17 that Trump should appear on the state’s Republican primary ballot while at the same time finding that he engaged in an insurrection on Jan. 6.

Wallace cited “competing interpretations” of the constitutional clause but rejected the challenge based solely upon the fact that a president was not considered an “officer” of the United States” because a president’s oath to “preserve, protect, and defend the Constitution” is not an oath to “support” the Constitution as required by Section 3.

“The Court is persuaded that ‘officers of the United States’ did not include the President of the United States,” Wallace wrote. “It appears to the Court that for whatever reason the drafters of Section 3 did not intend to include a person who had only taken the Presidential Oath.”

Most of her 102-page opinion, however, affirmed the petitioners’ claims that Trump had incited and engaged in insurrection and upheld some other of their arguments in favor of disqualification.

Blackman, the conservative law professor, noted that the officer issue was an “easy way” of resolving the case, which will likely be appealed up to the U.S. Supreme Court.

“There were five or six pages on the officer issue. It was done pretty pretty briskly. So, given that there are some time constraints on this case, because they want to move quickly, it could be an attractive argument,” he said.

Graber, who supports the move to bar Trump, noted that Wallace could have ruled based on officer argument, while finding that Trump engaged in insurrection, in order to tee-up findings for the Colorado Supreme Court to ultimately make the final call on Trump’s ballot accessibility in the state.

“The judge spent almost 100 pages documenting that Donald Trump engaged in an insurrection with the attempt to disturb, violently, the peaceful transition of presidential power. Then after doing this … the judge said but oh, by the way, it turns out that because of an obscure technicality in Section 3, which talks about any officer, civil or military, or anyone who holds an executive office — it turns out the president is an exception,” Graber said.

Perhaps, he noted, “the judge is setting up the Colorado Supreme Court to disqualify Trump.”

Procedural rejections

Then there are procedural and logistical reasons that 14th Amendment challenges have been dismissed. The case brought before the Minnesota Supreme Court was rejected, the court said, because “there is no error to correct” at this stage in the primary election process.

“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 wrote.

The Minnesota high court did not stop the challengers from “bringing a petition raising their claims” as it relates to the general election, however.

A Washington state district court judge also dismissed a lawsuit filed by a Spokane Valley resident last week on procedural grounds, stating that it isn’t certain that Trump will be listed as a candidate in their March 12, 2024, GOP primary because the ballot is not yet certified.

“Plaintiff’s Complaint concerns a hypothetical, as it is not certain that Mr. Trump will appear on the Washington presidential primary ballot,” Chief Judge Stanley Bastian wrote.

Further dismissals have come from cases mounted by long shot Republican presidential write-in candidate John Anthony Castro, who has filed similar suits in dozens of states

A U.S. district court in Arizona last week, dismissed one of Castro’s challenges, with Judge Douglas L. Rayes citing a lack of subject-matter jurisdiction, arguing that Castro was “not genuinely competing with Trump for votes or contributions, and therefore is not suffering a concrete competitive injury.”

A federal district court in Rhode Island last month also dismissed a lawsuit challenging Donald Trump’s eligibility filed by Castro, upholding a decision from a U.S. district court which rejected one of Castro’s lawsuits in New Hampshire.

The role of Congress vs. the judicial system

The Michigan Court of Claims in November dismissed 14th Amendment lawsuits against Trump because Judge James Robert Redford found that it was the role of Congress, not the judicial branch, to decide on the matters of Trump’s eligibility.

The judge also ruled that under state law, he did not have the power to order election officials to examine Trump’s eligibility based on the 14th Amendment.

“What we often seeing with certain hot button issues, institutions are just as happy to have someone makes a tough decision,” Graber said. “To some degree, I think there’s a case that everybody hopes somebody else will disqualify Donald Trump.”