The focus of the U.S. Supreme Court’s recent ruling in Trump v. Anderson was its holding that states cannot exclude federal candidates from state primary ballots under the Insurrection Clause. This decision, however, overshadowed another significant holding in the same case – that states may disqualify candidates from holding or attempting to hold state office under the Insurrection Clause.

The case was brought by a group of Colorado voters who challenged former President Donald Trump’s presidential candidacy under the Insurrection Clause based on his participation in the events on January 6, 2021, at the U.S. Capitol. Section 3 of the Fourteenth Amendment provides that “[n]o person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

This provision prevents former high-ranking officials who “have engaged in insurrection or rebellion against” the United States from holding any high office. Notably, this prohibition also extends to holding “any office . . . under any State,” which will include all state, county, and municipal offices. Thus, the Court held that “States may disqualify persons holding or attempting to hold state office” under the Clause. This decision makes state challenges fair game against state or local officeholders or candidates if the individual violated the Insurrection Clause. 

At least one state court has exercised this authority and removed a local candidate from the ballot under Section 3. In 2022, a New Mexico state court disqualified an Otero County Commissioner from holding office under Section 3 after he was convicted of trespassing at the U.S. Capitol on January 6, 2021. His appeals to the New Mexico Supreme Court were unsuccessful.¹ It remains to be seen how other states will enforce the Clause and how this decision will affect the 2024 election cycle. In Arizona, those challenges could possibly be raised in a pre-election ballot qualification challenge or post-election contest.

Candidates should be attuned to these potential challenges and stay apprised of any legal developments. As always, the Snell & Wilmer team will continue to carefully monitor all new developments in this area of the law.

Footnotes

1. Liz Landers, Official Removed from Office Under 14th Amendment Speaks out as Trump Case Looms, ABC News (Sept. 8, 2023, 2:08 A.M.), available at https://abcnews.go.com/Politics/trump-faces-14th-amendment-suits-cuoy-griffin-speaks/story?id=103009491. [Back]