Former AG McKenna: Unclear if Trump could be banned from ballot

Aug 24, 2023, 1:50 PM | Updated: 3:03 pm

Trump ballot...

Former President Trump could face legal troubles just to appear on the ballot in some states. (Getty Images)

(Getty Images)

As former President Donald Trump turns himself in to Georgia law enforcement Thursday, the question remains: Can Trump, who is facing 91 criminal charges, run for president?

Some groups might be planning to try to keep Trump off the ballot because they say he has violated the Constitution, according to former Washington Attorney General Rob McKenna.

More on Trump: Former president is set to surrender at a Georgia jail on charges he sought to overturn his 2020 election loss

“There are groups like the Constitutional Accountability Center in Washington, D.C., that are planning to go to the states, for example, to the secretaries of state, to demand that Trump be kept off the ballot,” McKenna said on “Seattle’s Morning News.”

Section 3 of the 14th Amendment reads:

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.

“And there’s this idea, at least from people who are supporting this type of action, that the 14th Amendment is self-executing, as in when a secretary of state sees the name, Donald Trump, they look at the Constitution say, ‘Sorry, you don’t qualify any more than if you were not born in the United States,'” McKenna said. “I really have a problem with that. I’m having a hard time understanding how it could be self-executing, in the sense that someone has to decide that he’s actually guilty right now.”


McKenna said the bar is high to prove Trump led an insurrection, and he had two ideas: he either actively engaged in insurrection or rebellion or aided those who did.

McKenna said that leaving these decisions to the secretaries of state is not a realistic option.

“And my understanding is that in (the state of) Washington, the secretary of state does not have the power to question the names that are submitted by the parties for the ballot. I didn’t realize that until a couple of years ago,” McKenna said.

“I remember when two states’ Supreme Court justices were opposed only by one opponent each, there was only one person to file against each of them. In one case, an individual was a disbarred attorney, and the secretary of state was notified of this fact. And she said, ‘Well, I don’t have the power to keep them off.'” McKenna continued. “So some of us had to go to court to get the court to order the secretary of state to take their names or prevent their names from appearing on the ballot because being a member of the bar is a clear qualification requirement to be on the court.”

McKenna explained that the idea of keeping a presidential candidate off the ballot is a new concept.

“We’re in completely uncharted territory here,” he said. “So, even the question of whether you can or are required to file this in state court versus federal court is an open question. On the surface, it seems to me it could be filed such a charge or claim could be filed in state or federal court. I think it would probably be in the form of an injunction seeking a court order that the secretary of state not place Trump’s name on the ballot for president, but at the same time.”

McKenna said he hasn’t seen or heard of any indication that a group in Washington is planning to file an injunction, but he wouldn’t be surprised if it happened.

Listen to “Seattle’s Morning News” with Dave Ross and Colleen O’Brien weekday mornings from 5-9 a.m. on KIRO Newsradio, 97.3 FM. Subscribe to the podcast here.

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Former AG McKenna: Unclear if Trump could be banned from ballot