Mugshot taken of Donald Trump in Georgia.
On September 1, a judge ruled that voters lack standing to challenge Donald Trump’s eligibility to appear on the Republican primary ballot. The plaintiffs had sought to make the argument that Donald Trump is ineligible to serve as President under Section 3 of the 14th Amendment due to his conduct on and around January 6. Section 3 of the 14th Amendment forbids government officials who have engaged in an insurrection from holding federal office, if they earlier took an oath to uphold the Constitution, as Trump did. The 14th Amendment forbids not just actual insurrectionists, but also those who aid or abet an insurrection, from holding office. Many law professors are now arguing that January 6 constituted an insurrection, and that Trump should thus be barred from being President again.
But in reality, January 6 seems more like a riot than an insurrection, since it was not designed to overthrow the government, or prevent it from ruling part of the United States, but rather to keep Trump, the head of government at the time, in office (while leaving entirely intact the rest of the government). Even if Trump was trying to improperly stay in office by preventing Biden’s inauguration, that seems more like an abuse of power, not the sort of revolt against authority that constitutes an insurrection. Even some die-hard Never Trump law professors such as Orin Kerr have said that Trump probably is not barred from office by Section 3 of the 14th Amendment, because even improperly trying to get yourself “declared winner of a U.S. election” is probably not “insurrection or rebellion” covered by the 14th Amendment’s bar.
As law professor Jonathan Adler, a critic of Trump, notes, such lawsuits attempting to bar Trump from the ballot face many obstacles, of which Article III standing is but one.
But even if a lawsuit can’t bar Trump from the ballot, a state legislature could give a state elections official the power to bar candidates from the ballot for violating Section 3 of the 14th Amendment. The state elections official could then bar Trump from the ballot, and there is maybe a 30% chance the courts would uphold that decision. That would give Joe Biden a victory in 2024, if Donald Trump is the nominee of the Republican Party yet is barred from holding office. There is a real chance — but not a very high likelihood — that the courts would rule that Trump violated Section 3 of the 14th Amendment, if Trump challenged the decision of state election officials to bar him from the ballot. But given the chance that Trump will be barred from holding office, Republicans should think twice about nominating Trump, when they could nominate someone else who clearly won’t be barred from becoming President — someone like Ron DeSantis or Nikki Haley.
Here is an excerpt from the United States District Judge’s short order dismissing the voters’ lawsuit seeking to bar Trump from the ballot in Florida:
Here, Plaintiffs lack standing to challenge Defendant’s qualifications for seeking the Presidency, as the injuries alleged are not cognizable and not particular to them. Plaintiffs allege that they have standing because Plaintiff Caplan has actively participated in the last twelve Presidential elections, voted for both Republicans and Democrats, is a Florida resident and United States citizen, is an attorney and member of various courts, and has never been sanctioned. DE 1 at 2. Plaintiffs further allege that Plaintiff Butin is a Florida resident and United States citizen and Plaintiff Strianese is a Nevada resident and United States citizen. Id. Plaintiffs allege they will suffer injury if Defendant is allowed to run for President and prevail when he could be disqualified or removed from office. Id. at 2-3. However, an individual citizen does not have standing to challenge whether another individual is qualified to hold public office. See, e.g., Kerchner, 612 F.3d at 207; Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009).
In Berg, the plaintiff, an attorney representing himself, filed a complaint seeking declaratory and injunctive relief in district court before the 2008 Presidential election, alleging that then-candidate Barack Obama was ineligible to run for President because he was not a “natural born citizen” within the meaning of Article II. Berg, 586 F.3d at 237. The district court observed that “[s]tanding has been a consistent barrier to lower courts hearing generalized, undifferentiated claims by voters and citizens,” and noted various cases in which citizens attempted to challenge a Presidential candidate’s eligibility for office or other governmental actions but lacked standing. . . . The court concluded that an alleged injury “stemming from a presidential candidate’s failure to satisfy the eligibility requirements of the Natural Born Citizen Clause is not concrete or particularized enough to constitute an injury in fact sufficient to satisfy Article III standing.” Berg, 574 F. Supp. 2d at 518.
The Third Circuit affirmed the district court’s rulings in Berg and reiterated that the plaintiff “suffered no injury particularized to him” and, therefore, lacked standing. Berg, 586 F.3d at 239. Courts throughout the United States have uniformly concluded that citizens do not have standing to bring lawsuits challenging a candidate’s eligibility for national office. See, e.g., Drake v. Obama, 664 F.3d 774, 778, 780-84 (9th Cir. 2011) (group of military personnel, state representatives, political candidates, and individual citizens did not have standing to challenge President Obama’s eligibility to hold office); Chapman v. Obama, 719 F. App’x 13 (D.C. Cir. 2018) (per curiam) (“The district court correctly concluded that appellant lacked standing to challenge President Barack Obama’s qualifications for holding office.”); . . .
Further, at least two courts have concluded that citizens attempting to disqualify individuals from participating in elections or from holding office based on the January 6, 2021 events at the United States Capitol lacked standing. See, e.g., Stencil v. Johnson, 605 F. Supp. 3d 1109 (E.D. Wis. 2022). In Stencil, the plaintiffs sought a declaratory judgment that three members of Wisconsin’s Congressional delegation were ineligible to serve under the Fourteenth Amendment because their participation in the January 6 attack constituted an insurrection against the United States. Id. at 111213. Among other things, the court determined that the plaintiffs lacked standing and explained that “[e]very citizen and voter could claim to have suffered the same injury as the plaintiffs here, which amounts to nothing more than engaging in political advocacy against candidates for office or issue advocacy against the views the candidates hold. The relief that the plaintiffs seek would no more directly and tangibly benefit them than it would the public at large.” Id. at 1117. . . .
Plaintiffs in this case similarly lack standing and, thus, this Court lacks jurisdiction. Accordingly, the Court exercises its discretion under the Declaratory Judgment Act, along with its obligation to examine its own jurisdiction, to dismiss this case.