Two left-leaning organizations sent a letter to North Carolina’s State Board of Elections last week urging the state officials to block former president Donald J. Trump from being able to run for president, arguing that his involvement in the January 6, 2021 attack on the U.S. Capitol legally disqualified him according to Section three of the 14th amendment. North Carolina is one of nine states targeted by the letter campaign.
The letters were from the organizations Free Speech For People and Mi Familia Vota Education Fund, and addressees includes election officials form California, Colorado, Georgia, Massachusetts, Michigan, New York, Oregon, Pennsylvania, and North Carolina.
The letters closely resemble a similar letter sent by the sent group to the Nevada Secretary of State Francisco V. Aguilar back in April. The campaign was originally launched solely by Free Speech For People under the name of the “14 Point 3 Campaign,” but was relaunched in November when Trump announced his reelection campaign, in collaboration with Mi Familia Vota, under the new name of “Trump is Disqualified.”
Legal argument and analysis
The N.C. letter argues that “under the Fourteenth Amendment to the U.S. Constitution, Mr. Trump is constitutionally ineligible to appear on any future ballot for federal office based on his engagement in insurrection against the United States.”
The letter spans 20 pages arguing that Section 3 of the Fourteenth Amendment, also known as the Insurrectionist Disqualification Clause, disqualifies Trump from the presidency.
The clause states that “No 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 an officer of the United States . . . 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. But Congress may, by a vote of two-thirds of each House, remove such disability.”
The letter states that Trump’s role in the “January 6 insurrection” makes him ineligible and that “States may enforce Section 3 without any new or special federal legislation.” This is as long as two-thirds of Congress does not invalidate Trump’s disqualification.
A paper released by the Congressional Research Service noted that although the president is not explicitly included in the provision, the president may fall under the category of “civil officer” which is explicitly included in the provision. The 2021 articles of impeachment by the House of Representatives accepted this view when it cited section three of the Fourteenth Amendment.
Jon Guze, Senior Fellow in Legal Studies at the John Locke Foundation, noted however that “convincing” counter arguments have been made from lawyers Josh Blackman and Seth Barrett, in a New York University Journal of Law and Liberty article.
The letter also includes the example of Abdul K. Hassan, a Guyanan-born naturalized U.S. citizen who was disqualified from appearing on the ballot by the NCSBE. A similar case occurred in 2021 when a suit was filed by N.C. voters against the U.S. Representative Madison Cawthorn’s reelection campaign. Free Speech For People was involved in the co-lead counsel challenging Rep. Cawthorn’s ballot access.
During that litigation, North Carolina’s State Board of Elections took the position that they held the authority to enforce section three of the Fourteenth Amendment, defending it in federal court but ultimately losing their case. In May 2022, the Fourth Circuit reversed the previous court’s decisions, however, stating that the Amnesty Act of 1872 did not preclude any further act of disqualification, as Cawthorn had argued. By that time, however, Cawthorn had already lost his primary so the board never sought to resolve the challenge.
letter of the law
Co-founder and President of Free Speech For People John Bonifaz told CJ that Section 3 of the Fourteenth Amendment, “was not designed solely to address ex-confederates. It was designed to address future insurrectionists as well. And Donald Trump is the Jefferson Davis of our time, and he must be barred from the ballot.”
Guze maintains that, although the 14th amendment was written and ratified following the Civil War, “it’s not at all clear that the Capital Invasion constituted an “insurrection or rebellion.” The fact that the letter makes frequent comparisons to the disqualification of Confederate officers and soldiers is both appropriate and telling . . . to compare what happened on Jan. 6, 2021, with secession and civil war is laughable.”
Dr. Andy Jackson, Director of the Civitas Center for Public Integrity, agrees.
“Free Speech for People has no legal basis for the challenge since President Trump has not been found to have been in rebellion or insurrection by any court, and the North Carolina State Board of Elections is not competent to issue such a finding on its own,” said Jackson.
“A similar challenge based on Section 3 of the 14th Amendment to Congresswoman Marjorie Taylor Greene’s eligibility in Georgia failed in 2022. In that challenge, Free Speech for the People failed to produce sufficient evidence to prove that she had committed insurrection. They have no more evidence against Trump,” he added.
Guze similarly called the challenge “performative” and said that Trump could almost certainly mount a successful challenge if forced to do so.
“Even if one could characterize some of the events of Jan. 6 as an ‘insurrection’ it’s not at all clear that Trump was ‘engaged’ in those events,” said Guze. “The Democrats had a chance to show that he was during the impeachment proceedings and failed miserably. Given how unlikely it is to succeed on the merits, I’m inclined to think this is more of a stunt than a serious attempt to keep Trump off the ballot.”
This story was updated on July 18 to reflect clarification in Jon Bonifaz’s reference to Section 3 of the 14th Amendment.