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Folks are trying to keep Trump off the ballot because "he engaged in insurrection."  Now, let's NOT argue about whether he did or didn't.  What I'm interested in is judges saying he did AND applying consequences for doing so when he has neither been convicted or tried, only indicted.  I'm not a lawyer, but it seems to me without a jury conviction, it violates Due Process.  Or can seven judges (Colorado) be considered a jury?  (Since Trump has probably less legal training than I do, they're not his "peers.)"

Rants about what he did or didn't do are irrelevant for the actual question, so please take your Trump-worship and/or Trump-hate elsewhere.

Is it legal to keep him off the ballot for a crime before he has been tried for it, much less convicted?

https://www.law.cornell.edu/constitution-conan/amendment-6/right-to-trial-by-jury-scope-of-the-right

WGroleau
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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – Dale M Jan 08 '24 at 10:22

4 Answers4

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Some due process is required and, whatever the initial procedure, it would be subject to judicial review. This is a link to the eight cases so far of people who have been disqualified for office under section 3 of the 14th amendment. Due to an amnesty for most ex-Confederates fours years after its enactment it wasn't actually applied to very many people.

From the linked page: "No one who has been formally disqualified under Section 3 was charged under the criminal “rebellion or insurrection” statute (18 U.S.C. § 2383) or its predecessors."

Nine very learned lawyers may be deciding this and other related issues very soon.

George White
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There is no requirement for disqualification to be the result of a jury conviction

First, there is no such requirement on the plain reading of Section 3 of the 14th Amendment (and the current Supreme Court quite likes a plain reading interpretation):

... shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

No mention of charges or a conviction.

Cases

There have been eight disqualifications: 6 from the post-Civil War era, one from 1919, and one from 2022.

Five of the nineteenth-century cases did not involve conviction, and the information about the sixth is inconclusive. Notwithstanding, these are possibly too ancient to be persuasive today - expected standards of justice have changed.

Victor Berger was a Socialist Congressman who opposed American participation in the First World War. He continued to espouse this position after America's entry publicly and was convicted under the Espionage Act. Reelected while under indictment in 1918, Congress formed a committee to determine if he should, as a convicted felon and anti-war campaigner, be permitted to take his seat. They decided no. He was then elected again in the special election called to fill his seat, and Congress again refused to allow him to take his seat. His conviction was overturned on appeal in 1921, and he ultimately served two more terms in Congress.

Couy Griffin was a New Mexico county commissioner who participated in the January 6, 2021 attack on the Capitol. During a recorded commission meeting, he also stated that he would return to DC on Inauguration Day with his weapons. When he did, he was arrested for trespass and disorderly conduct, being convicted and acquitted respectively. Following this, Citizens for Responsibility and Ethics in Washington brought a suit asking the District Court to remove him from office under the Disqualification Clause of the Fourteenth Amendment. The court did so, and his appeal to the New Mexico Supreme Court was dismissed on procedural grounds. Note, that he was never charged nor convicted of a crime directly related to "insurrection or rebellion" - lots of people trespass and that doesn't disqualify them from Federal office.

Who decides?

The historic decisions to bar individuals have originated from all three branches of the government; some have been barred due to administrative action by governors or their superiors, others have been barred by Congress itself, and others have been banned due to court cases.

As far as I know, no one who has been disqualified has ever successfully appealed. Only those disqualified by a court have sought judicial review, and all who did so were unsuccessful. Those barred through administrative action could likely seek judicial review; decisions of Congress on the matter are likely non-judicially reviewable.

At the same time, I am unaware of any challenge against a person being unsuccessful. AFAIK, these 8 are the only times it has ever come up, and they all lost.

Due process

All eight of these were afforded due process. Due process doesn't mean you get to make your case before a jury - the right to a jury only applies when you are charged with a crime. Being disqualified from holding office is not a punitive measure.

Dale M
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    I'd add that, while it makes no mention of charges or a conviction for insurrection, the next line "But Congress may, by a vote of two-thirds of each House, remove such disability." indicates that the intended due process for removing the ban is a vote of two-thirds of each House. – Alexander The 1st Jan 08 '24 at 13:13
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    Seems to me the question is really about establishment of fact. One can assert that an insurrection occurred, but at what point does it become established as a fact? Trials under the legal system are certainly one method by which (ideally) facts are established and agreed upon, but what other methods can be applied which would not invite dispute over a determination? – Anthony X Jan 08 '24 at 16:07
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    @AnthonyX: Some states put the burden of proof on prospective candidates to show that they are eligible to appear on ballots. Others explicitly state that all candidates meeting certain criteria must be included on ballots without regard for whether they are actually eligible for the office sought. In the former states, demonstration by a preponderance of the evidence that a candidate is ineligible would prevent the candidate from satisfying their burden of proof, and thus justify exclusion. In the latter states, no amount of evidence would justify exclusion of a candidate. – supercat Jan 08 '24 at 18:49
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    @AnthonyX: That's the core issue here. If you don't require a proper criminal trial to decide if a candidate has committed "insurrection", what's to keep a state court from arbitrarily and broadly defining the term to disqualify every candidate they dislike from the ballot, creating an effective one-party dictatorship? – dan04 Jan 08 '24 at 20:18
  • The Berger case seems to imply that a candidate cannot be excluded from the ballot, only prevented from assuming the office. That would certainly reconcile with the idea that Congress, faced with an elected insurrectionist barred from taking the office they've been elected to, can decide by two-thirds majority whether to override the exclusion. – Steve Jan 08 '24 at 20:39
  • Neither of the two cases pertains to keeping someone off the ballot. – user76284 Jan 08 '24 at 22:24
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    @dan04 Because criminal jury trials aren't the only way to determine facts? Objective reality is actually a thing, and words like "insurrection" mean things. If the court system is so corrupt that it ignores reality, the procedures you wrap it in don't really matter. In the current case in the public sphere, there have been multiple criminal cases that prove an "insurrection" occurred; participation in it was the only question of fact, not the existence of an insurrection. – Yakk Jan 08 '24 at 23:53
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    @dan04: It's worth remembering that there are other standards of a trial - while technically, the Former President was tried in the Senate, and essentially failed to be convicted to or beyond a two-thirds majority, the concept that another court can't take a more "Preponderance of the evidence" standard ignores that this is pretty similar to what happened to O.J. Simpson - he was acquitted criminally, but found liable civilly, for the same events, based on the same evidence. The judges are essentially doing a similar thing here. – Alexander The 1st Jan 09 '24 at 00:34
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    @dan04: Or perhaps put another way - even when you dispute a parking or speeding ticket in court, the court doesn't need to have a jury trial to determine if you parked improperly or sped past a speed limit in an area that a cop issued a ticket over. If there were, we would probably hear about a lot of jury nullification in those cases. – Alexander The 1st Jan 09 '24 at 00:41
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    There seems to be a quite general consensus that Arnold Schwarzenegger is not eligible. I don't recall there being any trial determining that he was not born in the US. – Acccumulation Jan 09 '24 at 03:41
  • Under what basis was Victor Berger barred? Violating the Espionage Act doesn't constitute participating in an insurrection. – Acccumulation Jan 09 '24 at 03:42
  • @Acccumulation: Insurrection isn't the only cause under the 14th Amendment - so is rebellion, and giving aid or comfort to the enemies thereof. The "Giving aid" part likely is what constitutes it in the case of the Espionage Act, but I don't know specifically if that wouldn't count in that case. – Alexander The 1st Jan 09 '24 at 07:10
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    @Acccumulation I'm guessing that advocating an end to the war gave aid and comfort to the Central Powers with whom America was at war. The same would apply to advocating and end to the Vietnam War, but, as I said in the answer, standards change. – Dale M Jan 09 '24 at 08:53
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    @Acccumulation: Because it's common knowledge that Schwarzenegger was born in Austria and only became a US citizen as an adult (thus not a "natural born citizen" for Presidential eligibility). When a statement of fact isn't disputed, people don't hire a lawyer; they just look it up on Wikipedia. A better analogy would be if he were running for President, with the help of a reverse "birther" movement who had forged a birth certificate showing him being born in Los Angeles, and convinced millions of people to believe it. That would actually be illegal, and thus cause for a trial. – dan04 Jan 09 '24 at 17:57
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Yes.

Section 3 of the 14th Amendment is not part of the criminal law; it is simply a factual condition for the eligibility of a person for holding public office. Denying that eligibility is not a conviction that would require a judgement by one's peers. Instead, it is a legal determination of the same kind as the factual statement whether a candidate is 35 years old or older. That determination can be made by a court or even an administration, in which case it will be open to judicial review.

Obviously, the determination whether somebody participated in an insurrection is less clear-cut than that of one's age. An existing, independent conviction for sedition or insurrection would make that determination easier.

Peter - Reinstate Monica
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    It might be helpful to highlight that the last sentence is only likely true under the current 18 USC 2383. If Congress were to create a crime named "insurrection" but deem that it is commited when taxes are overdue, a conviction of that insurrection would likely not have any bearing on a finding of insurrection for the purpose of Article 3. – Jen Jan 08 '24 at 13:45
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    @Jen true; also, if congress makes a law that calls a work contract a marriage, the employer will not have to pay alimonies after he fires somebody. – Peter - Reinstate Monica Jan 08 '24 at 13:56
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    I think the issue is that some party or agency has to render a determination, but that party or agency has to have the authority to do so - authority which is accepted by all affected parties. If the determination (or the determining authority) comes into dispute, then what? Seems almost inevitable that the legal system will be called upon to resolve such a dispute. – Anthony X Jan 08 '24 at 16:14
  • "authority which is accepted by all affected parties" is a high bar these days ;-). In the end, as you say, disputes are solved by the judiciary -- or a coup, if the side not accepting its authority is adamant and numerous enough. – Peter - Reinstate Monica Jan 08 '24 at 20:45
  • @Peter-ReinstateMonica Depends on how the law calling a work contract a marriage, and the laws regarding alimony, are worded. – Acccumulation Jan 09 '24 at 03:43
  • @Acccumulation true; also for the insurrection case. – Peter - Reinstate Monica Jan 09 '24 at 03:50
  • @Peter-ReinstateMonica The insurrection case is different because it references a constitutional provision. Congress may have some leeway in defining insurrection but that leeway is not infinite if they want their definition to actually apply to the 14th. – D M Jan 09 '24 at 05:37
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A conviction by jury requires that the jurors not only believe that a defendant committed a crime, but also that no reasonable person who saw the same evidence could believe otherwise [i.e. there is no reasonable doubt]. A citizen who reasonably believed that a candidate is not eligible for a public office, however, would be duty-bound not to vote for that person even if they also recognized that the evidence was not so overwhelming as to make other interpretations unreasonable. If the number of people who don't believe a candidate is eligible would be too small to elect that person, the candidate would not be entitled to the office, even if the evidence would leave room for a reasonable person to think the candidate might be eligible.

Different states have different philosophies regarding ballot qualification. Some seem to vet all candidates for eligibility before they are placed on the ballot, while others view the cost of ink to print an ineligible non-winning candidates' name on the ballot as being sufficiently slight, and the likelihood of an ineligible candidate winning an election sufficiently remote, that it makes sense to only verify the eligibility of whichever candidate wins. Provided that the citizenry are clearly informed that the presence of a candidate's name on the ballot implies no judgment as to eligibility, I think there's a fair argument to be made for allowing citizens to exercise their duty by withholding votes from ineligible candidates.

supercat
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  • States may have different views regarding who is able to be on the ballot, but they all still have to abide by Federal standards. These standards include minimum age, being born in the US, and residency restrictions. Most of the time, these qualifications are enough, but in the case of Trump, we do have to explicitly invoke Amendment 14, section 3 as it has become relevant. This is similar to preventing Arnold Schwarzenegger from being on the ballot, since he wasn't born in the US, except he didn't actively and purposefully try to do the thing that disqualifies him from the office. – computercarguy Jan 08 '24 at 20:03
  • @computercarguy: The question of what names appear on ballots is a separate question from that of who is eligible for office. While some states such as Maine have explicit fact-finding procedures related to eligibility, others such as Michigan explicitly specify that the appearance on the ballot of a candidate who has been nominated by a recognized political party does not imply any judgment by the state of Michigan regarding the candidate's eligibility, and forbid the Secretary of State from attempting to exercise such judgment with regard to such candidates. – supercat Jan 08 '24 at 21:34
  • @computercarguy: In any case, my main point was that the standard of proof necessary to prevent someone from assuming an office is, and should be, lower than the standard of proof necessary for a criminal conviction, and thus the lack of a criminal conviction is insufficient to prove eligibility. – supercat Jan 08 '24 at 21:41
  • @computercarguy: Another wrinkle is that in some states, it would be perfectly legal for a candidate Adam Burns to nominate a slate of electors to appear under his name, whom he instructed to vote for Charlie Dickens, and whom he trusted to carry out such instructions. If Adam Burns happened to win such a state, then it would be right and proper for Charlie Dickens to receive that state's electoral votes, without regard for whether Adam Burns himself would be eligible for office, provided none of the individuals he nominated as Electors was disqualified. – supercat Jan 08 '24 at 22:20
  • The main problem with your supposition (and there's a lot of problems) is that if a disqualified candidate gains the most votes in a state, those who voted for them could claim election interference/denial when that candidate wasn't allowed to take office or the votes discarded as a whole. The reality is that quite literally a person can't be on a ballot unless they have passed federal and state qualifications to be in office, so no, who can take office and who is on the ballot are not different questions. https://ballotpedia.org/Ballot_access_for_presidential_candidates – computercarguy Jan 09 '24 at 17:16
  • Also, your proposed situation has nothing to do with Dickens being on the ballot, so it's irrelevant to the current situation. And you might want to re-examine how state electors actually work. https://www.archives.gov/electoral-college/electors and https://www.usa.gov/electoral-college Your proposed, and unlikely, scenario is one of the many reasons why the electoral college should be eliminated. – computercarguy Jan 09 '24 at 17:27
  • @computercarguy: Suppose that, between the general election and January 6, Adam Burns did some action which everyone--including Mr. Burns--agreed disqualified him from taking office. There would be no question about his eligibility to have appeared on the general election ballot, or the legitimacy of the votes that were cast when he was eligible. If Mr. Burns' Electors cast their votes for Charlie Dickens, who would receive a majority if they were counted as such, would Mr. Burns' ineligibility for office affect the legitimacy of such votes? – supercat Jan 09 '24 at 17:43
  • @computercarguy: Someone who believes a candidate is eligible would have every right to view the act of keeping the candidate off the ballot as election interference, whether or not the candidate would have won. Having such a candidate kept out of office by citizens who refuse to vote for him, however, could not be seen as election interference because each and every voter would clearly have the authority to withhold their own vote from any candidate for any reason. If e.g. Trump had won the general election, but Biden had intercepted and tampered with the EC votes in the mail, ... – supercat Jan 09 '24 at 17:54
  • ...then it would have been right and proper for Congress to refuse to certify the EC vote pending a determination of why it received EC votes for Biden from states that had been won by Trump. One would hope no situation would ever arise where Congress acts as the final backstop to prevent someone from illegitimately taking office, but I would argue that such a possibility is part of the reason for having Congress supervise the EC vote count. – supercat Jan 09 '24 at 18:12
  • Your first comment is irrelevant to the situation and question at hand, so that's off topic and I'm not going to bother to respond, as it clearly isn't what we are talking about. The second comment is about someone's personal beliefs, which absolutely don't supersede the Constitutional qualifications for occupying office, so that also has no relevance. EC votes aren't mailed in, but delivered by hand, so there can be no tampering there, except when fake electors were used by Republicans, which Congress did refuse to use. – computercarguy Jan 09 '24 at 18:31
  • State ballots are the first line against illegitimate candidates, and why Trump shouldn't be on the ballot. And Trump interfering with Congress certifying the 2020 vote is exactly why he is being prevented from being on the ballot. – computercarguy Jan 09 '24 at 18:32