“Trump is Legally Barred from the Ballot” Michigan Voters Challenge Trump’s Eligibility Under Fourteenth Amendment’s Insurrectionist Disqualification Clause

Free Speech For People and Michigan attorney Mark Brewer, on behalf of a diverse group of Michigan voters, filed a lawsuit in state court today to bar Donald Trump from appearing on the state’s presidential primary and general election ballot in 2024. The lawsuit argues Trump is disqualified from holding public office under Section 3 of the Fourteenth Amendment, also known as the Insurrectionist Disqualification Clause, for his role in inciting and facilitating the violent insurrection at the Capitol on January 6th, 2021.

Enacted in the wake of the Civil War, Section 3 of the Fourteenth Amendment disqualifies from public office any individual who has taken an oath to uphold the U.S. Constitution but then engages in insurrection or rebellion against the United States, or gives aid or comfort to its enemies. No prior criminal conviction is required. Trump’s involvement in the violent attack on Congress to prevent the certification of election results, which resulted in the disruption of the peaceful transfer of power for the first time in our nation’s history, disqualifies him from holding any future public office. State election officials do not need permission from Congress to enforce the Insurrectionist Disqualification Clause, just as they do not need congressional approval to enforce the U.S. Constitution in general.

“Donald Trump violated his oath of office and incited a violent insurrection that attacked the U.S. Capitol, threatened the assassination of the Vice President and congressional leaders, and disrupted the peaceful transfer of power for the first time in our nation’s history,” said Ron Fein, Legal Director at Free Speech For People. “Our predecessors understood that oath-breaking insurrectionists will do it again, and worse, if allowed back into power, so they enacted the Insurrectionist Disqualification Clause to protect the republic from people like Trump. Trump is legally barred from the ballot and election officials must follow this constitutional mandate.”

“The United States Constitution makes Donald Trump ineligible to run for or serve in any public office in the country, let alone President,” said Mark Brewer. “All Michigan voters, including the plaintiffs, have a well-established right to have only eligible candidates on the ballot. Since Secretary of State Benson has announced that Trump will be on the primary ballot unless a court orders otherwise, we are seeking a court order preventing Trump from being on the ballot.”

The lawsuit details the multiple actions taken by Trump to overturn the results of the 2020 presidential election, starting with widespread claims of election fraud and repeatedly urging former Vice President Mike Pence to reject the electoral certification of the results before and during the January 6th attack. It also describes the ways in which Trump incited his supporters, many of whom were armed, and whom he knew to be armed, to march to the Capitol and “fight like hell.” When Trump was prevented from engaging in the Capitol attack himself, he stationed himself in the White House dining room and refused to call off his supporters for more than three hours as they violently attacked members of the Capitol Police and forced members of Congress into hiding while invading the building. Congress, over a dozen federal judges, Trump’s own Department of Justice, and his personal defense lawyer have all characterized the attack as an insurrection. And judges hearing January 6-related cases have repeatedly assigned responsibility for that insurrection to Trump.

On September 12, 2023, Free Speech For People filed, on behalf of voters in Minnesota, a similar legal challenge to Trump’s eligibility to appear on that state’s ballot. Oral argument before the Minnesota Supreme Court in that case is scheduled for November 2, 2023.

Free Speech For People filed similar challenges in 2022 against Georgia Congresswoman Marjorie Taylor Greene and former North Carolina Congressman Madison Cawthorn for their role in the January 6th insurrection. Although those challenges did not result in disqualification (Cawthorn’s because he lost his primary while the challenge was pending; Greene’s because the judge found insufficient factual evidence that she, personally, had engaged in the insurrection), they set important legal precedent that lays the groundwork for this challenge, including: that states have legal authority to adjudicate Section 3 challenges; that state processes for adjudicating Section 3 challenges do not violate a candidate’s constitutional rights; that no prior criminal conviction is required under Section 3 challenge; that words (including “marching orders or instructions to capture a particular objective, or to disrupt or obstruct a particular government proceeding”) can constitute engaging in insurrection; and that an 1872 congressional amnesty for ex-Confederates does not apply to January 6.

On September 6, 2022, Judge Francis J. Matthew of New Mexico’s First District permanently enjoined Otero County Commissioner and “Cowboys for Trump” founder Couy Griffin from holding office under the Insurrectionist Disqualification Clause.

Free Speech For People, a national nonpartisan legal advocacy group, has spearheaded the nationwide effort to “hold insurrectionists accountable for their role in the violent assault on American democracy” that took place on January 6th, 2021. Along with the Mi Familia Vota Education Fund, the group launched TrumpIsDisqualified.org, a campaign calling on Secretaries of State and top election officials across the country to follow the mandate of Section 3 of the Fourteenth Amendment and permanently bar Donald Trump–and all other elected officials who participated in the January 6th insurrection–from any future ballot.

Read the full complaint here.