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The Effort to Remove Donald Trump from the Presidential Primary Ballot



I believe there are many who support Donald Trump for President in 2024 but there are also many who do not.  Whatever your position, I believe that the legal attacks to remove him from the ballot are totally wrong.  These efforts are based on an allegation that he participated in an insurrection against the United States and is therefore disqualified under Section 3 of the Fourteenth Amendment to the U.S Constitution.  Let’s go through this and I’ll explain why I believe this effort is wrong.


Let’s start with some history.  The Fourteenth Amendment to the Constitution was introduced in Congress in April of 1866.  It was passed by both houses of Congress on June 16,1866 and sent to the 37 states for ratification.  The amendment was ratified by 28 states, the required three-fourths of the states, on July 9, 1868.  Subsequently, 37 of the 50 states have ratified the 14th amendment – the most recent being Kentucky in 1976.  When I was researching this subject, it became really apparent how devastating the assassination of Abraham Lincoln was to our country.  After Congress passed the legislation creating the Thirteenth Amendment and Lincoln approved on February 1, 1865, all slavery and Involuntary Servitude, except for criminal punishment, was abolished.  On April 15, 1865, Lincoln was assassinated and Vice-President Andrew Johnson was sworn into office as the 17th president of the United States.  Do you know what political party Johnson belonged to?  The Democrat Party.  Lincoln picked the Tennessee Democrat as his vice-president to balance the ticket with a southerner and to help with the Reconstruction process.  But after Lincoln was assassinated and Johnson sworn in as President, he began to show his true colors.  His racist true colors.  He allowed the previous Southern legislatures to re-establish themselves.  And they began to pass restrictive laws designed to limit the freedom of the nearly four million former slaves and ensure their availability as a cheap labor force.  These laws were known as “Black Codes.   The Fourteenth Amendment was introduced by Congressional Republicans to deal with these issues that limited integrating the former slaves into American society. After passing the first civil rights legislation in the history of the country – the Civil Rights Act of 1866 (over President Johnson’s veto), Republicans in Congress effectively took control of Reconstruction. The Reconstruction Act of 1867 required southern states to ratify the 14th Amendment—which granted “equal protection” of the Constitution to former enslaved people—and enact universal male suffrage before they could rejoin the Union.


So, what does the Fourteenth Amendment do?  The 14th Amendment consists of 425 words broken into 5 sections.  Section One grants citizenship to all persons "born or naturalized in the United States," including formerly enslaved people, and provided all citizens with “equal protection under the laws,” extending the provisions of the Bill of Rights to the states. Section 2 authorized the government to punish states that abridged citizens’ right to vote by proportionally reducing their representation in Congress. Section 3 banned those who “engaged in insurrection” against the United States from holding any civil, military, or elected office without the approval of two-thirds of the House and Senate. Section 4 prohibited former Confederate states from repaying war debts and compensating former slave owners for the emancipation of their enslaved people. Section 5 granted Congress the power to enforce this amendment, a provision that over-time led to the passage of other landmark legislation in the 20th century, including the Civil Rights Act of 1964, and the Voting Rights Act of 1965. Congress required former Confederate states to ratify the Fourteenth Amendment as a condition of regaining federal representation.


Interestingly, it does not appear that the State of Colorado has ever ratified the 14th amendment.


It is Section 3 or the Insurrection Clause, as it is often referred to, that is being used to challenge Trump being listed on the Presidential Primary ballot.  So, what exactly does Section 3 say?


“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 a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, 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.”  To see the full transcript of the Fourteenth Amendment here is a link - https://www.archives.gov/milestone-documents/14th-amendment


The following is an analysis of the attempts to remove Trump from the Presidential Primary ballot using Section 3 of the Fourteenth Amendment, by attorney Maurice Emmer, formerly of Aspen, Colorado:


“Section 3 of the 14th Amendment to the U.S. Constitution (the insurrection clause) lists the following types of offices - senators, members of Congress and “officers of the United States” who engaged in insurrection.  Section 5 provides that Congress may enact legislation to enforce the provision.  Much discussion has focused on whether it was correct to characterize Trump’s behavior as involving an “insurrection.”  Other discussion has focused on whether a candidate can be excluded if he hasn’t been prosecuted under the legislation adopted to enforce section 5 of the 14th Amendment (18 US Code sec. 2383) (Trump hasn't been so prosecuted).


These discussions miss the point.  The argument about needing to be prosecuted under 18 US Code sec. 2383 is simply dumb.  Sec. 2383 is a criminal statute carrying a criminal penalty.  Section 3 of the 14th Amendment has no criminal consequences.  It is an element of qualification for certain public offices (Senate, Congress and Officers of the United States).


The key issue is whether the president is an “Officer of the United States.” Remembering that the 14th Amendment was adopted shortly after the Civil War, there is legislative history (that I have not read) shedding some light on whether the president was considered an “Officer of the United States” when the 14th Amendment was adopted.  There are reasons to believe Congress did not intend the insurrection clause to apply to the president.  They are explained in the briefs filed by Trump’s lawyers in the Colorado litigation.  One strong argument is that the President is elected by electors representing the general population of voters.   The structure of our government is that power flows from the voters and that the voters, through their electors, have the power to elect whomever they choose as long as he meets the requirements of age, citizenship, and having been born in the United States.  I do not believe the president is an “officer of the United States” for any purpose, including the insurrection clause.  The use of the term “officer” or “civil officer” in the Constitution makes this clear.


For example, Section 1., Article II of the Constitution vests “executive power of the United States in a "President of the United States.”  That section also creates the role of Vice President.  In neither case is the term “office” or “officer” used in reference to either.  Paragraph 6 of section 1 addresses succession in the event the president and vice president cannot continue to serve.  It says “Congress may by Law provide for the case of [removal, resignation, death etc.] declaring what Officer shall then act as President…”  Section 2. of Article II empowers the president to appoint “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…” with the advice and consent of the Senate.  Section 2 goes on to enable Congress to enact “Laws” permitting the President alone to appoint “inferior Officers” without the advice and consent of the Senate.  These and other constitutional provisions strongly imply that an “officer of the United States” is someone who occupies a position that required appointment by a president.  That does not include the President.”


So, whatever your feelings are about former President Trump, I believe these attempts to remove his name from the ballot by manipulating Section 3 of the Fourteenth Amendment are wrong.  Let the people decide.  His name should be on the Primary Election ballot.  I guess we shall see if the United States Supreme Court agrees or if they have a different take on the matter.


Our next DCRCC monthly meeting is going to be on February 6, 2024 at the Surface Creek Community Church in Austin.  The doors will open at 5:30 pm and the meeting starts at 6:00 pm and we try to finish by 7:30 pm.  One of the activities that will be on the agenda is the introduction and presentations by the two Republican candidates for Colorado House District 58 – Mark Roeber and Larry Don Suckla.  Mark Roeber is a rancher in the North Fork and former Delta County Commissioner.  Larry Don Suckla is a rancher/businessman and former Montezuma County Commissioner.  This is a great opportunity to meet these two candidates and talk to them.  We will open the doors at 5:30 to allow folks a chance to visit with the candidates before the meeting.  Hope to see you there.


David Bradford

Chairman, Delta County Republican Central Committee   


PS –Remember you can donate to the Delta County Republican Central Committee, by going to our website https://www.deltacoloradogop.com  Since we won’t have the Headquarters open for most of this year, donations are critical in helping build up our bank account so we have funds for supporting our candidates in the 2024 election.  An individual donation of $20 is a great small donation.  You can also donate in person at our monthly meeting.  Thank you! db


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