The provision is meant to keep anyone who participated or aided in an insurrection from ever again holding office, but its use is rare in modern times.

Critics describe the move as a “fringe legal theory,” or “tortured logic.”

Trump was indicted in Washington last month on charges of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding and conspiracy against the right to vote. The charges stem from his alleged efforts to overturn the results of the 2020 presidential election, culminating in the deadly attack on the U.S. Capitol on Jan. 6, 2021.

The decision to block a candidate from appearing on the ballot falls on state election officials. It is not uncommon for a person to be denied because they are not of age or are not a natural-born citizen.

Bryant “Corky” Messner, who was endorsed by Trump in his unsuccessful Senate bid in 2020 in New Hampshire, presented an argument Aug. 25 to Secretary of State David Scanlan that Trump should be disqualified.

In an interview with UPI, Messner said he was motivated to take action by an article in the Pennsylvania Law Review penned by legal scholars William Baude and Michael Stokes Paulsen, members of the conservative Federalist Society.

“Section 3 of the 14th Amendment forbids holding office by former office holders who then participate in insurrection or rebellion,” they write, going on to describe how Trump’s actions on and leading up to Jan. 6 constitute participation in an insurrection.

“I don’t agree with everything they say in there, but it’s very compelling,” Messner said. “So I asked for a meeting with Secretary of State Scanlan, who is serious about his job. The first thing he said to me was he felt like he could not make a decision on disqualifying Trump without some legal guidance.”

“My reaction was, ‘I agree with you,'” Messner said. “He’s being prudent about this.”

Messner has retained counsel in Washington to further pursue the issue. Meanwhile, Scanlan said he is discussing it with Attorney General John Formella and seeking legal guidance on potential next steps.

“Neither the Secretary of State’s Office nor the Attorney General’s Office has taken any position regarding the potential applicability of Section 3 of the 14th Amendment to the United States Constitution to the upcoming presidential election cycle,” Scanlan and Formella said in a joint statement to UPI.

The New Hampshire Republican Party has vowed to fight any measures to remove Trump from the ballot, arguing in favor of letting voters decide whether he should return to the Oval Office.

“Efforts to deny New Hampshire Republican primary voters a full slate of options are antithetical to our Live Free or Die spirit,” Chris Ager, chairman of the New Hampshire GOP said in a statement.

“The New Hampshire State Republican Party will fight all efforts to eliminate candidates from our primary ballot. Let voters decide the nominee, not a weaponized federal justice system using tortured logic.”

More challenges coming

On Wednesday, six voters filed suit against Colorado Secretary of State Jena Griswold and Trump seeking to keep him off the ballot there. The voters are represented by Citizens for Responsibility and Ethics in Washington and two law firms.

Free Speech For People, a nonpartisan, nonprofit public interest organization, has sent letters to election officials in 50 states and Washington, D.C., urging Trump’s removal from the ballot. On Aug. 30, it sent more letters, targeting five states.

The group engages in public advocacy and legal action on issues related to the Constitution, including litigation challenging alleged voter suppression and voter intimidation in multiple states.

Ron Fein, legal director for the organization, said, “Our predecessors put [Section 3] into the Constitution, not as a solution to a one-time crisis, but rather for all time,” Fein told UPI. “[They] learned in blood the lesson that someone who takes an oath to support the Constitution, then violates that oath by participating in an insurrection, cannot be trusted to return to power.

“It was written for just such people as Donald Trump who fomented and facilitated a violent insurrection that overtook the U.S. Capitol and stopped the peaceful transfer of power for hours,” he added.

Fein said no conviction is necessary to evoke Section 3, alleging that Trump’s actions leading up to and on Jan. 6, 2021, meet the legal definition of engaging in an insurrection.

It takes support by vote from two-thirds of both the House and Senate to grant a person amnesty under the provision.

FSFP is taking two routes to urge states to remove Trump from the ballot. First is the letter campaign, which started broadly but is being tailored to certain states. Second, it will bring legal challenges to courts in multiple states.

Fein declined to share which states they are focusing on or when legal challenges will be filed.

“We’re not telling Trump when and where we are filing,” he said. “Trump should be prepared.”

Last year, FSFP filed a complaint under Section 3 against former Rep. Madison Cawthorn, R-N.C., claiming “reasonable suspicion” that he aided in the insurrection. The case was dismissed as moot after Cawthorn lost his primary election.

The 4th Circuit Court of Appeals in North Carolina rebuked Cawthorn’s argument that he should be granted amnesty under the 1872 Amnesty Act, which was used to remove most of the penalties imposed on former members of the Confederacy after the Civil War.

The court ruled that the amnesty act strictly applied to the Civil War. Fein said the precedent will be used to block Trump from seeking amnesty under the 1872 act.

In a second case, FSFP filed a challenge against Rep. Marjorie Taylor-Greene, R-Ga. The court ruled that the organization did not provide enough evidence that she engaged in the insurrection, but it clarified that certain types of speech fit the description of engagement. This includes giving marching orders.

The 14th Amendment was used last year as a basis to unseat Otero County, N.M., Commissioner Cuoy Griffin. A district court judge ruled that Griffin, the founder of Cowboys for Trump is “barred for life” from holding public office because he participated in the Capitol riot.

“He took an oath to support the Constitution of the United States… and then engaged in that insurrection after taking his oath,” Judge Francis Mathew wrote in his decision.

Griffin’s removal was the first time an elected official was removed from office for being involved in a rebellion since the Civil War.

Ohio is among the states that FSFP sent a letter to. The office of Secretary of State Frank LaRose told UPI it does not anticipate blocking Trump or any candidate from the ballot in 2024.

“Ohio law clearly lays out the process for a candidate to seek ballot access, and our job is to follow the law, unless a court orders us to do otherwise,” Mary Cianciolo, interim press secretary, told UPI in an email. “We’re not aware of any litigation in Ohio related to this fringe legal theory, and we do not anticipate being told to deny ballot access to any candidate who complies with Ohio law.”

‘Trump’s best interest’

Others have added their voices to those of Messner, Baude and Paulsen. Former Arkansas Gov. Asa Hutchinson alluded to Section 3 during the first Republican primary debate in Milwaukee. He said he would not support Trump if he is nominated to represent the GOP because he believes he is disqualified.

Former U.S. Court of Appeals Judge J. Michael Luttig and Harvard Professor Laurence Tribe also agreed, proposing that the appropriate route to disqualify Trump is by taking it to the U.S. Supreme Court.

Trump commented on the effort to block him from ballot on Labor Day, saying, “Almost all legal scholars have voiced opinions that the 14th Amendment has no legal basis or standing relative to the upcoming 2024 presidential election.” He did not name the scholars.

Messner said it is in Trump’s best interest for the high court to hear his side of the argument.

“It’s important for New Hampshire, because if we have a primary here, and he’s on the ballot, and subsequent to the first in the nation primary there’s a decision and he’s been disqualified, then we basically disenfranchised all of New Hampshire’s voters,” he said.

Though Messner was once endorsed by Trump, he does not share the former president’s view that the U.S. Justice Department is acting on political motivation.

“With respect to everything else going on with Trump, I happen to believe if you scrape away the politics on the right or left around the indictments and so forth, I believe that the system is working,” Messner said.