An amendment meant to keep ex-Confederates from holding office after the Civil War is once again coming into play as Colorado and Maine have announced that former President Donald Trump will not appear on the ballot of their upcoming presidential primaries.

The 14th Amendment, Section 3 of the U.S. Constitution states, “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.”

Setting aside any feelings about Trump and simply looking at this legally, personally, I do not understand how someone not convicted of insurrection can be disqualified in the name of democracy. However, I will leave that argument to legal scholars and instead try to correct a popular online statement that Democrats have done this before with Abraham Lincoln in 1860. While it is true Lincoln was not on any ballots in the South, it’s not because of Democrats’ interference, but because there was no official ballot in 1860.

During most of the 19th century the government did not print official ballots. In fact, during the first several elections nothing was written down at all. A voter came to the courthouse on voting day, swore on the Bible he was who he claimed he was (the first form of voter ID) then announced his vote to the clerk who recorded it. Eventually voting turned to paper, but mostly written on scrap paper or ballots printed in newspapers, but the voting was still public knowledge.

Being a public ballot allowed for political machines like Tammany Hall to form and control votes, especially from new immigrants. Eventually parties began printing their own ballots already filled out and could pass them to their supporters. With most immigrants a party representative met them on the docks and let them know that a job and lodging was prepared for them and all they had to do was vote for their man. Parties even color coded their ballots to guarantee compliance at the open polls.

It was during this time that Lincoln ran for president in 1860. Since the government did not produce a ballot, there is no way it could have excluded Lincoln in the South. The exclusion actually came from Lincoln’s own party. Because the Republican Party had no foothold in the South, there were no Republicans to create or distribute a ballot.

The only slave states where Lincoln received any popular votes were along the border where the Party had some support: Delaware at 23%, Kentucky at .9%, Maryland at 2.4% and Missouri at 10.3%.

As a side note, one major reason the Deep South seceded quickly after Lincoln’s victory was because he could begin to give out government jobs. The fear was Southerners might become Republicans simply for the lucrative positions and by the next election Republicans would have printed ballots.

After the Civil War, political machines continued to pressure voters with public ballots leading to calls for reform.

Finally in the 1880s, states began going with the Australian System where the government printed ballots and voters submitted them in secret in an attempt to stop the corruption.

It was about this time that voter turnout dropped from around 80% to 40%. With the open ballot, parties did what they could to get voters to the polls knowing they could control them. Once they lost control, parties no longer made sure everyone showed up.

If looking for a better example to fit the current situation, look no further than Eugene Debs in the 1920 Election.

Debs had run for president four times as a Socialist Party candidate. This fifth time was different as he was serving a ten-year stint in prison for violating the Sedition Act.

In 1918, during World War I, President Woodrow Wilson pushed through the Sedition Act making it illegal to criticize the government or the war. That same year Debs gave a speech criticizing both which landed him in jail. His sentence only grew his support and in 1920 the Socialist Party nominated “Convict 2253” for president.

Even while serving time for attacking the nation, Debs was allowed on the ballot. Probably the biggest difference is Debs only polled 3.4% of popular votes, whereas if Trump is allowed to run, he might possibly win.

We are walking in uncharted territory with Trump’s primary ban. While the 14th Amendment does not require a criminal conviction, this could set a dangerous precedent.

Even when Debs was convicted, he was allowed to run. Fortunately, the Supreme Court has decided to take up the case. It will be up to the court to decide if a state can restrict a candidate from the ballot if it determines the candidate is in violation of the 14th Amendment without a trial or due process.

James Finck is a professor of history at the University of Science and Arts of Oklahoma. He may be reached at HistoricallySpeaking1776@ gmail.com.