As primary season approaches, the question of whether former President Donald Trump could be disqualified under the 14th Amendment has become a major issue. Georgia Secretary of State Brad Raffensperger weighed in Wednesday with an op-ed published in The Wall Street Journal with the headline “I Can’t Keep Trump Off the Ballot.”
Despite that headline, the Republican’s piece is more about how he shouldn’t block Trump and less about whether he could. By arguing that he shouldn’t and can’t, Raffensperger’s wrong on both fronts. Under Georgia law, he doesn’t just have the power to keep Trump off the ballot — he has the responsibility to do so.
Under Georgia law, Raffensperger doesn’t just have the power to keep Trump off the ballot — he has the responsibility to do so.
Though the 14th Amendment, passed in the aftermath of the Civil War, is most often cited for its clauses about due process and natural-born citizenship, Section 3 says no person who’d sworn to support and defend the Constitution but then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” can hold a federal or state office.
Raffensperger’s Wall Street Journal essay dismisses invoking that 155-year-old disqualification clause as “merely the newest way of attempting to short-circuit the ballot box,” adding that “historians have questioned whether it was meant as a permanent standard.” He chooses not to grapple with the originalist analysis from two conservative legal scholars that makes the case that Section 3 is very much still in effect. Instead, he focuses almost exclusively on why he feels invoking the disqualification clause would be the real threat to democracy.
Raffensperger’s argument conspicuously lacks specifics about what he thinks prevents him from keeping Trump off Georgia’s ballot. He notes that “Georgia law contemplates a legal process that must take place before anyone is removed from the ballot.” He refers to the attempts to block Rep. Marjorie Taylor Greene, R-Ga., and former Rep. Madison Cawthorn, R-N.C., from the 2022 midterm ballot, calling both “failed.” Raffensperger said those cases, which “required a decision in the courts,” failed, but “activists are urging secretaries of state like me to bar Mr. Trump from the ballot unilaterally.”
It doesn’t seem fair to describe those cases as failures. A federal appeals court found that Cawthorn could be barred from holding office under the 14th Amendment, but as he lost his primary race before the ruling, the decision was no longer relevant. A countersuit from Greene in federal court met a similar fate, with a judge determining that an 1872 amnesty law, which Cawthorn had also offered up as a defense, didn’t apply to her. That ruling also determined that "Section 3 of the Fourteenth Amendment is an existing constitutional disqualification adopted in 1868." Both rulings, thus, affirmed that the 14th Amendment can be used to bar candidates from office.
Though the initial case against Greene went through the state-level process that Raffensperger hinted at in his essay, the conclusion reached has no real impact on Trump’s likely disqualification or on Raffensperger’s obligations. The challenge to Greene’s candidacy was filed to Raffensperger’s office, which handed the case over to an administrative law judge. That judge found that the challengers hadn’t met the burden of proof, as the pro-insurrection sentiments presented at trial were expressed before she had sworn her oath of office. Raffensperger then issued a final decision in the matter, affirming the court’s decision and declaring that Greene was qualified to run.
But a look at Georgia election law shows it didn’t have to be that way. Crucially, the law states that candidates who have been named by Georgia political parties or who have submitted their names for candidacy “shall meet the constitutional and statutory qualifications for holding the office being sought.” That clearly includes the provisions of the disqualification clause, which was rightly considered the supreme law of the land in the federal court’s Greene decision.
The question, then, is whether Raffensperger wants to act in the best interests of his constituents.
Once an administrative judge has held a hearing and the initial ruling has been reported to the secretary of state, according to the law, the secretary “shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering.” In other words, a judge’s ruling is advisory; the secretary makes the final decision. If that weren’t the case, the law’s wording would more likely have required the secretary of state to simply certify the court’s findings.
Moreover, that same law says Georgia’s secretary of state “upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate.” Translation: Raffensperger has the power to start the process up against Trump himself if he so chooses. Taken together, the only conclusion is that Raffensperger can keep Trump off the ballot. He just doesn’t want to.
I understand the reasons he lists in his essay for not wanting to, including his claim that keeping Trump off the ballot would “reinforce the grievances of those who see the system as rigged and corrupt.” The crux of his argument — that only the voters can decide whether Trump is qualified — makes sense on its face. But it falls apart the minute you think through the role voters play and have played in our democratic republic.
The 14th Amendment was ratified as part of the Constitution, a process that required the people’s representatives at the federal and state levels alike to sign off on it. Unlike what Trump has claimed, it is still very much a valid factor in determining eligibility to be president. The state law allowing Raffensperger to determine who is qualified for the ballot was passed by Georgia’s Legislature and signed by Georgia’s governor. Thus, a previous era of Georgia voters gave the power to strike Trump from the ballot over to the secretary of state. And last year, Georgia’s voters overwhelmingly voted him back into office.
The question, then, is whether Raffensperger wants to act in the best interests of his constituents. Georgia’s voters entrusted him with that power, and no matter how much he tries to hand that power back, the law recognizes that power as his.
