Congress has already disqualified Trump from the ballot (Tristan Snell, February 8, 2024, CNN)
Those votes came in the second impeachment of Trump, in January and February of 2021, in which majorities of both the House and the Senate backed an article of impeachment against Trump for “incitement of insurrection.”
This was a finding of fact, by majorities of our elected representatives, after a full public trial in which Trump was able to mount a defense — and it should be deemed persuasive, if not conclusive, in answering the factual questions before the Supreme Court. Indeed, for the more right-wing justices, who are often fond of pontificating that courts should not make policy judgments and should instead defer to legislatures, one would think that such a clear public pronouncement from Congress on Trump’s engagement in insurrection would be a compelling precedent.
To be clear, the 14th Amendment does not actually require anyone to have voted to disqualify an insurrectionist, whether that’s a legislature or a jury. It certainly does not require a conviction, as some have tried to argue (and such bastardization of the plain language of a constitutional provision is exactly the opposite of what conservatives normally preach).Legally, the insurrectionist is disqualified the moment he engages in insurrection.