Exploring the Controversy over Trump's Ballot Status

Students examine the Supreme Court's upcoming decision on whether to keep Donald Trump on the presidential ballot.

To the Teacher

In February 2024, the U.S. Supreme Court is scheduled to consider an issue of historic importance: whether Donald Trump will be on the ballot for president in all fifty states. 

This lesson includes a pre-reading discussion activity centered on understanding the U.S. political spectrum and two readings on the current controversy regarding Trump’s legal status as a candidate. Questions for discussion follow each reading.

wooden tiles spelling out "vote"
Photo by Glen Carrie on Unsplash

Pre-Reading Activity: Understanding the Political Spectrum: Liberals (Progressives) & Conservative

Draw on students' prior knowledge by inviting them to respond to the following question:

  • Have you heard about the upcoming Supreme Court decision on whether Trump should be on the ballot?

Elicit, or explain, that some states have removed Trump from the ballot for his alleged involvement in the Insurrection. The Supreme Court will decide whether to put him back on.

Ask students to share what they know, or recall, about the insurrection on January 6, 2021. Take time to process any feelings that may come up.

Then invite students to share their thoughts in response to the following questions:

  • How do you think people who describe themselves as "liberals," or "progressives," would want the court to rule in this case?
  • How do you think people who describe themselves as "conservatives" would want the court to rule in this case? 
  • Have you noticed other issues in the U.S., or world, happening because of divisions like those between liberals and conservatives? If so, what?

Thank students for sharing. Let them know that today they'll be exploring this case and how both liberals and conservatives view it.

Reading One — Some States Have Removed Trump from the Ballot. Will the Supreme Court Put Him Back On?


On February 8, the U.S. Supreme Court is scheduled to consider an issue of historic importance: whether Donald Trump will be on the ballot for president in all fifty states. 

In a situation with little historical precedent, several states are currently considering removing Trump, the former president and frontrunner for the Republican party’s nomination, from their ballots. They would do so on the grounds that he participated in an insurrection against the United States government. Already two states, Maine and Colorado, have decided to disqualify Trump from their ballots, and others are now considering whether to act similarly.

The issue has landed in the Supreme Court, with a ruling expected to be handed down quickly, perhaps before March—when many states hold their primary elections. In a January 18, 2024 article for the New York Times, legal journalist Adam Liptak covered recent developments in the case. Liptak wrote: 

Former President Donald J. Trump urged the Supreme Court… to reverse a ruling barring him from the primary ballot in Colorado and to declare him eligible to seek and hold the office of the presidency.

The case turns on Section 3 of the 14th Amendment. Adopted after the Civil War, it bars those who had taken an oath “to support the Constitution of the United States” from holding office if they then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

The Colorado court ruled that Section 3 covers Mr. Trump in light of his efforts to overturn the 2020 election that culminated in the Jan. 6, 2021, attack on the Capitol.


Despite the decisions of state courts in Colorado and Maine, Donald Trump’s name has not yet been removed from ballots in those places. Such removals are on hold until the United States Supreme Court’s ruling. Part of the controversy surrounding these cases stems from debates over Section 3 of the 14th Amendment and debates over how to define key terms such as “insurrection” and what it means to “engage in” such activity. 

In a December 20, 2023 article for Vox, legal correspondent Ian Millhiser provided an overview of the Colorado Supreme Court’s ruling in Anderson v. Griswold, the case over whether the state should remove the former president from its ballot. Millhiser wrote

An “insurrection,” the Anderson majority opinion claims after quoting from several dictionary definitions, “would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”

Meanwhile, a majority of the [Colorado] Supreme Court concludes that Trump “engaged in” an insurrection because he spent months lying to his supporters, claiming that the 2020 election was “rigged” before it even happened, encouraging them to “fight,” suggesting that Democrats would “fight to the death” if the shoe were on the other foot, and specifically naming then-Vice President Mike Pence as someone who should be targeted by the pro-Trump mob that invaded the Capitol.

Though Trump did not enter the Capitol himself on January 6, the Colorado justices quote several documents suggesting that these actions are enough to qualify as an “insurrection,” including an opinion by Attorney General Henry Stanbery, who was in office shortly after the Civil War, which concluded that “[d]isloyal sentiments, opinions, or sympathies would not disqualify” a person from office under the 14th Amendment. “But when a person has, by speech or by writing, incited others to engage in rebellion, [h]e must come under the disqualification.”

But, as the four Colorado justices in the majority also acknowledge, their decision travels “in uncharted territory, and ... this case presents several issues of first impression.” Ultimately, the US Supreme Court will have the final word on whether Trump is disqualified.



For his part, former President Trump denies that he took part in an insurrection, and he also argues that the 14th Amendment should not apply to the office of the president. As Liptak wrote in the New York Times:

Mr. Trump’s brief [to the Supreme Court] attacked the Colorado ruling on many grounds. If he persuades a majority of the justices on any one of them, he will prevail….

The brief said Mr. Trump himself had not “engaged in insurrection.”

“President Trump never participated in or directed any of the illegal conduct that occurred at the Capitol on Jan. 6, 2021,” the brief said.

The brief added: “Raising concerns about the integrity of the recent federal election and pointing to reports of fraud and irregularity is not an act of violence or a threat of force. And giving a passionate political speech and telling supporters to metaphorically ‘fight like hell’ for their beliefs is not insurrection either.”....

The brief’s primary argument was that Section 3 did not apply to Mr. Trump because the president was not among the officials covered by the provision. “The president is not an ‘officer of the United States’ as that term is used in the Constitution,” the brief said.


The Supreme Court case is particularly time sensitive because primary elections have already begun and will be taking place in many states over the next two months. Because of this, the court is being asked to hear and rule on the case at a faster pace than usual. 


For Discussion:

  1. How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read? What personal connections, thoughts, or feelings did you have about what you read?
  2. According to the reading, what are the main issues the U.S. Supreme Court is scheduled to consider in February regarding Donald Trump?
  3. Colorado and Maine decided to disqualify Trump from their ballots on the basis that his actions on January 6, 2021, were enough to qualify as “insurrection.” Colorado judges cited an opinion from Attorney Stanbery, who wrote that under the 14th Amendment a person is disqualified from running for president when they have “by speech or by writing, incited others to engage in rebellion.” What do you think of the Colorado court’s decision?
  4. According to the reading, how has former President Trump responded to the case against him appearing on the ballot? What did you think of his argument?


Reading Two: The Unusual Politics of Trump’s Ballot Troubles


As the February 8 Supreme Court ruling draws near, an unusual pattern has emerged: some of the strongest arguments to remove Trump from the 2024 ballot have come from conservative legal scholars—people who might share similar views with former President Trump on many political issues. Meanwhile, some progressives have argued that removing Trump from the ballot would not be productive, even though they strongly disagree with the former President’s political views.

In an August 25, 2023 article for their website, the nonprofit group Citizens for Responsibility and Ethics in Washington highlighted some of the prominent conservative scholars who have argued against Trump’s eligibility for office. The group wrote:

Earlier this month, prominent conservative law professors and Federalist Society members William Baude and Michael Stokes Paulsen authored a 126-page paper exploring the enforceability of Section 3 of the 14th Amendment in the case of January 6th. [They concluded:]

Overall, it seems to us to be quite clear that the specific series of events leading up to and culminating in the January 6, 2021 attack qualifies as an insurrection within the meaning of Section Three: “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.”....

[Subsequently,] J. Michael Luttig, a retired federal judge and influential conservative voice, and celebrated legal scholar Laurence H. Tribe, professor emeritus of constitutional law at Harvard, published a piece in The Atlantic commending [Baude and Paulsen’s paper] and bolstering its arguments…. The two called [the paper] “momentous” and “written with precision and thoroughness.”....

[Luttig and Tribe] also noted that Baude and Paulsen are two of the most prominent conservative constitutional scholars in the country. Luttig is a lifelong Republican who was nominated as a federal judge by President George H.W. Bush and clerked for Antonin Scalia. 



While such conservative scholars have contended that Donald Trump should be removed from the ballot, some progressives have come to a different conclusion—even as they oppose Trump’s political views. These more liberal commentators argue that the most democratic way to defeat Trump is at the ballot box, not at the Supreme Court. Writing on December 21, 2023 for The Progressive magazine, Bill Lueders argued that removing Trump from the ballot and denying Americans the opportunity to vote for him would paradoxically make Trump stronger. Lueders wrote:

Many people across the land are cheered by efforts to address the threat that Donald Trump poses to American democracy by attempting to keep him off the presidential ballot. Legal actions seeking to make this happen have been launched in Colorado… and may be pursued in other states.

Trump, the argument goes, has disqualified himself from holding public office under a seldom-invoked clause in the Fourteenth Amendmentpassed in the aftermath of the Civil War, barring those who have “engaged in insurrection or rebellion against” the United States….

It is a quest doomed to fail, because the U.S. Supreme Court’s 6-3 conservative supermajority, including three Trump appointees, will never allow it. But it is also, in my opinion, a terrible idea—one that plays directly into Trump’s hands as an example of real, as opposed to imagined, “election interference” by his political foes….

Even if it were legally possible to keep Trump off the ballot, I believe doing so would be an affront to democracy. If the people of this country want to elect a President as manifestly corrupt and unfit as Donald Trump, that is their right. Letting voters make bad decisions is the essence of democracy….

I have to believe that, given the chance, the American electorate will reject Trump again. Of course, there’s no guarantee, but trying to prevent this by denying people the opportunity to vote for him is going to make him stronger, whether he wins or loses.


Still others believe that Trump should be disqualified, but contend that their position is not based on politics. Washington Post columnist Perry Bacon Jr., who believes Trump should be removed from the ballot, recently wrote: “This is not a partisan argument. I strongly oppose Florida Gov. Ron DeSantis (R). His record suggests that he is not only more conservative, radical and anti-democratic than Trump, but also that DeSantis would be more effective than Trump in implementing his policies. But I don’t have any problem with DeSantis or any of the other current Republican candidates being on the ballot because none of them have tried to overturn the results of an election.”

While the question of whether or not Donald Trump will be allowed on the ballot for president in some states clearly has momentous political implications, commentators from across the political spectrum disagree about how the case might play out in the court of public opinion.


For Discussion:

  1. How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read? What personal connections, thoughts, or feelings did you have about what you read?
  2. Were you surprised by any of the stances expressed in the reading? How are some positions on whether Trump should be disqualified from running different than what you might expect from people coming from a “liberal” or “conservative” viewpoint?
  3. Bill Lueders expressed concern from a progressive perspective that disqualifying Trump from the ballot may actually help Trump and make him stronger. Why might this be? 
  4. How would you predict that the Supreme Court might decide this case? If you were on the Supreme Court, how might you decide?

–Research assistance provided by Sean Welch and Celeste Pepitone-Nahas