There’s never been anything like the 2024 election year. Every other day I hear a different scenario of how the presidential election could be radically changed.

First, Biden and Trump are the two oldest candidates to ever run for president of our country. One or both of them could die or become incapacitated before election day. Neither looks like they’re in great shape.

Second, the courts could find Trump ineligible to run under Section 3 of the Fourteenth Amendment and knock him out of the race. Section 3 bars anyone who has “engaged in insurrection or rebellion” against the country from holding federal office.[1]

The Colorado Supreme Court has already held Trump ineligible to be on its primary ballot based on Section 3.[2] The former president immediately appealed its decision to the U.S. Supreme Court which will hear oral arguments very soon on February 8^th. Prominent conservative legal scholars who are members of the Federalist Society, an influential conservative advocacy group, agreed that the Court could disqualify Trump under the Fourteenth Amendment. They wrote that Section 3 is “self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress.” They then concluded that Trump could be rendered ineligible for election.[3]

From a liberal perspective, Bruce Ackerman, Yale Professor of Law and Political Science, offered a different angle in reaching a similar conclusion. He contends that “originalism,” that is, the meaning of the Fourteenth Amendment as it was intended at its origin, requires Trump’s exclusion from the race for president.

Ackerman argues that the Colorado court “found that Trump’s support of the Proud Boys, which played a key role in the Jan. 6 riot, represented a paradigm case of “insurrection” as it was originally understood at the time the amendment was enacted.” And, that understanding is supported by “leading originalist scholars and jurists.”[4]

Additionally, Trump’s three appointments to the Supreme Court, “Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett,…proudly proclaim(ed) their adherence to “originalism” at their Senate confirmation hearings.” Ackerman notes it was also their “basis for repudiating Roe v. Wade and the constitutional right to an abortion in Dobbs.”[5]

In effect, these three justices are trapped by their own doctrines. How could they use originalism to deny women the right to an abortion and not apply it to deny Trump the right to run for president? Ackerman believes that “if the three Trump appointees stick to their originalist principles and vote to disqualify him from office, the justices would actually strengthen American democracy and might help ease the country’s sharp divides — while also bolstering a beleaguered Supreme Court.”[6]

Whatever the Court decides will apply to all fifty states, not just Colorado. Given the Colorado presidential primary, along with those in 15 other states and territories, is March 5^th, just five weeks away, the Court should decide pretty quickly. A decision to throw Trump off the ballot would drastically change the election and might even result in widespread protest and violence. That last factor could play a role in the Court’s decision as well.

This is just one of several wild cards in this year’s election. I will explore others in the coming weeks and months.

Bruce Berlin

A retired, public sector ethics attorney, Berlin is the author of Breaking Big Money’s Grip on America (See breakingbigmoneysgrip.com.), the founder of New Mexicans for Money Out of Politics, a former U.S. Institute of Peace fellow, and the founder and former executive director of The Trinity Forum for International Security and Conflict Resolution. He can be reached at breakingbigmoneysgrip@gmail.com.

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[1] https://www.bbc.com/news/world-us-canada-66690276

[2] https://apnews.com/article/trump-insurrection-14th-amendment-2024-colorado-d16dd8f354eeaf450558378c65fd79a2

[3] https://www.bbc.com/news/world-us-canada-66690276

[4] https://www.politico.com/news/magazine/2024/01/25/supreme-court-originalism-trump-ballot-eligibility-00137666

[5] Ibid.

[6] Ibid.