How to Implement Section 3 Disqualification, with Ned Foley and Derek Muller
Sep 6, 2023
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Legal scholars Ned Foley and Derek Muller join Lawfare Senior Editor Scott R. Anderson to discuss the implementation of Section 3 disqualification under the 14th Amendment. They explore the interpretation and application of Section 3, its relevance in disqualifying individuals involved in insurrection or rebellion, and the procedural hurdles in implementing disqualification. The podcast also delves into hypothetical scenarios related to disqualification of candidates, the role of presidential electors, and the disqualification of state officials under Section 3.
The podcast explores the complexities of implementing Section 3 disqualification and the need for a timely resolution before elections to ensure electoral fairness and prevent a constitutional crisis.
The experts discuss the varying interpretations and processes of Section 3 disqualification across states, highlighting the need for a uniform national standard established by the Supreme Court.
The podcast raises questions about applying Section 3 disqualification to different offices, including members of Congress and federal judges, emphasizing the importance of reasoned processes and strategic handling of these issues.
Deep dives
Section 3 of the 14th Amendment and its interpretation
The podcast discusses the disqualification of former President Trump and others from public office under Section 3 of the 14th Amendment. The experts explore how Section 3 might be interpreted and implemented, specifically in relation to Trump and other individuals who may face potential disqualification.
The challenges of implementing Section 3 disqualification
The podcast delves into the complexities and challenges of implementing Section 3 disqualification. It highlights the differences between the election processes during the time of the 14th Amendment's enactment and the modern era. The experts discuss the role of state legislatures, administrative tribunals, and state courts in determining eligibility and enforcing disqualification. Questions about self-execution and the need for congressional legislation to enforce Section 3 are explored.
Impact on electoral process and potential constitutional crises
The podcast explores the potential impact of Section 3 disqualification on the electoral process and the possible constitutional crises that may arise. The experts discuss the role of electors, Congress, and the Vice President in determining eligibility and disqualification. The intersection of the Electoral Count Reform Act, the 12th Amendment, and the 20th Amendment in relation to disqualification is also examined, raising questions about the counting of electoral votes and the transfer of power in case of disqualification.
Importance of Settling Section 3 Disqualification before elections
The podcast episode discusses the importance of settling the issue of Section 3 disqualification before elections. The main motivation behind having this issue settled on the merits is to ensure electoral fairness and prevent a constitutional crisis. The speaker proposes a route where a state legislature enacts a law implementing the disqualification, which would then be brought to the Supreme Court for a timely resolution. This approach allows for a judicial process with due process and fact-finding, minimizing procedural derailments. While there may be differences in state laws and processes, the Supreme Court would have jurisdiction to decide on conflicting interpretations and establish a national standard.
Challenges and Complexity of Applying Section 3 to Different Offices
The podcast further explores the challenges and complexities in applying Section 3 disqualification to different offices. It highlights the varying interpretations and processes across states, with examples of county-level officials being disqualified under Section 3 in New Mexico. The podcast raises questions about the application of Section 3 to members of Congress and federal judges, as well as electors exercising discretion in voting for eligible candidates. It emphasizes the need for reasoned processes and strategic handling of these issues, considering the potential procedural pitfalls and limited time windows for challenges. While there may be differences in interpretation and state laws, the U.S. Supreme Court has the ultimate authority to establish a uniform national standard.
As the 2024 presidential election inches closer, legal scholars are hotly debating whether former President Trump’s actions in relation to Jan. 6 might have disqualified him (and many others) from public office under Section 3 of the 14th Amendment. But far less attention has been given to how precisely this disqualification should be implemented so as to bring the ultimate issue to the Supreme Court for decision—preferably before the 2024 election is under way.
To discuss these issues, Lawfare Senior Editor Scott R. Anderson recently sat down with two leading election law experts and friends of the podcast: Professor Ned Foley from The Ohio State University’s Moritz College of Law; and Professor Derek Muller of the University of Notre Dame Law School. They discussed how Section 3 might be interpreted, the ways it might be implemented in relation to former President Trump, and what other avenues for enforcement might apply against other people facing a similar possibility of disqualification.
