Democracy & Elections

The Lawfare Podcast: How to Implement Section 3 Disqualification, with Ned Foley and Derek Muller

Scott R. Anderson, Ned Foley, Derek Muller, Jen Patja
Wednesday, September 6, 2023, 8:00 AM
How would disqualification due to Section 3 of the 14th Amendment work?

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As the 2024 presidential election inches closer, legal scholars are hotly debating whether former President Trump’s actions in relation to Jan. 6 might have disqualified him (and many others) from public office under Section 3 of the 14th Amendment. But far less attention has been given to how precisely this disqualification should be implemented so as to bring the ultimate issue to the Supreme Court for decision—preferably before the 2024 election is under way.

To discuss these issues, Lawfare Senior Editor Scott R. Anderson recently sat down with two leading election law experts and friends of the podcast: Professor Ned Foley from The Ohio State University’s Moritz College of Law; and Professor Derek Muller of the University of Notre Dame Law School. They discussed how Section 3 might be interpreted, the ways it might be implemented in relation to former President Trump, and what other avenues for enforcement might apply against other people facing a similar possibility of disqualification.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.
Ned Foley holds Ohio State University’s Ebersold Chair in Constitutional Law and directs its election law program. He currently is a Guggenheim Fellow and Visiting Professor at University of Arizona’s law school. He is the author of Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press, revised edition 2024), and Presidential Elections and Majority Rule (Oxford University Press, 2020). He writes about improving electoral procedures at Common Ground Democracy.
Derek Muller is a professor at the University of Iowa College of Law.
Jen Patja is the editor and producer of The Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.

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