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this post was submitted on 12 Aug 2023
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There are already suits being prepared to send to states in order to disqualify Trump from appearing on the ballot, on the basis of the 14th Amendment, Section 3. Such a suit was partially successful in New Mexico, against a county commissioner who was convicted of trespassing for entering the Capitol building on Jan 6, 2021.
In that case, the court found that A) Jan 6 was, for the purposes of 14A S3, an "insurrection," and B), that the defendant in the suit engaged in that insurrection. The election occurred while the case was awaiting appeal, and the defendant lost, so the case is moot.
However, that Part B above is informative, in that it is most certainly not required that a defendant of such a case have been convicted of "insurrection or rebellion," only that they have engaged in the same. Where there was an insurrection, did the defendant contribute to that insurrection? Where the answer is yes, the person (who has previously held office and sworn an oath to uphold the Constitution) is disqualified from office. There is no requirement for any other legislation or legal case.
The possibility of Trump gaining the presidency again is more likely than there being a significantly successful insurrection or rebellion in response to his being disqualified from the ballot for the 2024 election. Furthermore, Trump's candidacy is currently all but certain - at present, he will be on the ballot in all fifty states and various territories - and the election is closer in time than any possible public turmoil in response to it. The greater likelihood of Trump being put back in office, and the nearer proximity in time of that event, means that we should be addressing that possibility, and not second guessing based on a "what if?" prediction.
Back to the process of applying 14A S3. Application does not require any court filing. Surely, a judicial order would carry more "legitimacy" with certain people, but the disqualification just is, in the same way that the disqualification for the office of president for people under age 35 just is. States have their own various processes for determining who is qualified to run for office, and who has the authority to make those decisions. Court cases are not necessary.
Practically speaking, Trump would only need to be disqualified in a handful of swing states - Georgia, Wisconsin, Arizona, Michigan all come to mind - for him to be unable to reach 270 electoral votes.