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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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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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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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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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