By Marshall Cohen, CNN
(CNN) — Election officials in key states have recently rejected calls to unilaterally remove former President Donald Trump from the 2024 ballot and are saying courts should decide whether he’s disqualified by the 14th Amendment’s “insurrectionist ban.”
The secretaries of state who oversee elections in Michigan, Georgia, New Hampshire and Minnesota have recently said they don’t have the power on their own to invoke the 14th Amendment and block Trump from the presidential ballot.
These officials, which include Democrats and Republicans, come from states comprising 45 electoral votes.
Michigan Secretary of State Jocelyn Benson, a Democrat, said Thursday in a Washington Post op-ed that this unilateral approach was “misguided” and “the courts” should decide.
Georgia Secretary of State Brad Raffensperger, a Republican, said in a Wall Street Journal op-ed that this would “reinforce the grievances of those who see the system as rigged and corrupt.”
A provision of the 14th Amendment, which was approved after the Civil War, says any American official who takes an oath to uphold the US Constitution is disqualified from holding future office if they “engaged in insurrection or rebellion” or have “given aid or comfort” to insurrectionists.
However, the Constitution doesn’t spell out how to enforce this ban, and it has been applied only twice since the late 1800s, when it was used against former Confederates.
Liberal advocacy groups and some leading conservative legal scholars believe this arcane provision applies to Trump because of his attempts to overturn the 2020 election and block the peaceful transfer of power and for inciting the attack on the US Capitol.
Trump denies wrongdoing regarding the January 6, 2021, attack and says these candidacy challenges have “no legal basis.” He has pleaded not guilty to separate federal and state indictments that charged him with crimes stemming from his attempts to overturn the 2020 election.
The left-leaning groups have filed major lawsuits in Minnesota and Colorado, asking courts to prohibit election officials from putting Trump’s name on the ballot. But some of these experts have also claimed the provision is “self-executing,” meaning that election officials involved in the ballot-printing process can simply disqualify Trump on their own.
That more aggressive approach is now being rejected by election officials in key states.
“Many states do not have a law on the books empowering the secretary of state to judge the eligibility of presidential candidates,” said Derek Muller, an election law expert who teaches at the Notre Dame Law School. “It’s no surprise that many secretaries would disclaim any such power.”
The Democratic secretary of state in Minnesota and the GOP secretary of state in New Hampshire also said they won’t block Trump from the ballot without court intervention.
“As long as he submits his declaration of candidacy and signs it under the penalty of perjury, pays the $1,000 filing fee, his name will appear on the presidential primary ballot,” New Hampshire Secretary of State David Scanlan told reporters Wednesday.
Ron Fein, the legal director of Free Speech for People, which is one of the organizations behind the anti-Trump candidacy challenges, said his group will “continue to press this critical matter in the courts” so election officials will “carry out their duty to bar Trump from their state ballots.”
“While some secretaries of state may claim that they do not have the authority to follow the constitutional mandate of Section 3 of the Fourteenth Amendment, the bottom line remains that Donald Trump is disqualified from appearing on any state ballot based on his role of inciting, mobilizing, and facilitating the January 6th insurrection,” Fein said in a statement.
This story has been updated with additional details.
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CNN’s Alison Main contributed to this report.