If Removing Donald Trump from a State's Ballot Depends on State Law, It's a Case for Supreme Court to Consider

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09/11/2023
Source: texasinsider
09/11/2023

President Trump gives a thumbs up, as he and Democrat Joe Biden enter the home stretch of the 2020 Election. by is licensed under

It’s better, more healthy for our institutions, for Trump to lose fair & square rather than be thrown off the ballot at the outset."

By Alex Swoyer

Several lawsuits alleging former President Trump should be disqualified from the election have been launched across the country. The fight to remove Mr. Trump from the 2024 ballot could make it to the Supreme Court, according to court watchers, who say it’s unclear how the justices would rule if they get involved in the political fray.

It is the type of case that would warrant a look from the high court, especially if Mr. Trump’s foes succeed in throwing him off the ballot under Section 3 of the 14th Amendment.

The clause essentially says anyone who leads an insurrection or rebellion against the government is disqualified from holding public office. It was passed following the Civil War.

“I anticipate that this will ultimately go to the Supreme Court. Given the composition of the court, my best guess is that the Court would find a way to keep Trump on the ballot – probably arguing that ‘the voters should decide,’ or something like that,” said Steven D. Schwinn, a law professor at the University of Illinois Chicago.

Mr. Schwinn also said the court could say it is a “political question” and choose to not consider the argument.

“Depending on how the case comes to the Court, that could cut either way. If all this sounds like we don’t know, that’s about right.

"As with so many things Trump, we’re truly in unchartered waters,” he said.

A federal judge earlier this month dismissed a suit brought by a Florida tax attorney attempting to disqualify Mr. Trump under the 14th Amendment because he allegedly fomented an insurrection following his loss in the 2020 election.

Judge Robin L. Rosenberg, an Obama appointee, said the lawyer did not have a specific legal injury to bring the federal lawsuit.

Legal scholars have debated whether Mr. Trump could run for president following the Jan. 6, 2021, riot in which a pro-Trump mob breached the U.S. Capitol in an attempt to prevent Congress from certifying President Biden’s election win.

Harvard University professor emeritus Laurence Tribe said he believes the Constitution’s 14th Amendment is clear and it would be too big of a hurdle for Mr. Trump to surmount, reasoning he shouldn’t be able to run for reelection.

“You are disqualified, period,” Mr. Tribe, a liberal legal analyst, said on CNN. “So all of the charges against the president which at the moment don’t happen to include insurrection are really beside the point.”

But not all legal experts agree with that analysis of Section 3 of the 14th Amendment, which reads:

“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.”

Under the section, the House also can un-disqualify someone with a two-thirds majority vote.

The clause has only been used a handful of times since the 1860s.

Though Mr. Trump is facing criminal charges in four separate cases, he has not been charged with insurrection nor convicted of any crime.

He is currently facing federal trials in southern Florida over his handling of classified documents and in Washington for trying to overturn the 2020 election. Both cases are being prosecuted by special counsel Jack Smith.

He is also charged under New York state law with falsifying business records to hide hush money payments made during the 2016 campaign and under Georgia state law with attempting to overturn the 2020 election results in that state.

John Yoo, a former DOJ lawyer who is now a law professor at the University of California-Berkeley, wrote in The Federalist:

if it was clear Mr. Trump led an insurrection, the Justice Department could have acted on a referral to prosecute the former president from the Jan. 6 Committee, which investigated the riot.

The Senate also could have voted to convict Mr. Trump when the House impeached him for insurrection in the Jan. 6 riot.

“The Senate’s acquittal is the only official finding by a federal or state institution on the question of whether Trump committed insurrection. The failure of the special counsel to charge insurrection, and the Senate to convict in the second impeachment, highlights a serious flaw in the academic theory of disqualification,” Mr. Yoo wrote, along with co-author Robert Delahunty, a fellow at the Claremont Institute’s Center for the American Way of Life.

Aside from the Florida lawyer’s lawsuit, John Castro, a long-shot GOP presidential candidate, has also filed a petition with the Supreme Court over the matter.

He lost in a lower court on the standing issue, too. But he said in his petition to the justices that his campaign would be injured if Mr. Trump remains on the ballot.

“A primary candidate has judicial standing to bring a claim challenging the eligibility of a fellow primary candidate for competitive injury in the form of a diminution of votes and/or fundraising if the primary candidate believes that the fellow primary candidate is ineligible to hold public office and to prevent actions irreconcilable with the U.S. Constitution,” he wrote.

Ilya Shapiro, senior fellow and director of constitutional studies at the Manhattan Institute, said Mr. Castro’s petition is “not going anywhere.”

Mr. Shapiro said a case in Colorado is much stronger.

Citizens for Responsibility & Ethics in Washington filed a lawsuit in Colorado last week on behalf of GOP and unaffiliated voters saying Mr. Trump should be kept off the primary ballot under the 14th Amendment.

CREW is making similar cases across the country.

“I think there is a good chance that a credible petition gets to the Supreme Court before the first primaries – and I don’t know how they would rule,” Mr. Shapiro said.

He doubts the justices will step in unless a lower court were to toss him from the ballot.

“It’s better, more healthy for our institutions, for Trump to lose fair and square rather than be thrown off the ballot at the outset,” Mr. Shapiro said.

Several secretaries of state are consulting experts on how to handle ballot printing – and whether Mr. Trump’s name should stay on the ticket for their voters.

Derek T. Muller, a law professor at the University of Notre Dame, said the amount of authority a secretary of state has over removing Mr. Trump’s name from the ballot depends on state law.

“It’s a state-by-state thing,” he said.

Mr. Mueller said to get a state Supreme Court to weigh the issue, “you have to find the right state, at the right time, with the right challenge.”

“The Supreme Court‘s hand might be forced if a state Supreme Court excludes him from the ballot – because that’s pretty momentous,” he said.

Alex Swoyer is a legal affairs reporter for The Washington Times. She can be reached by email at aswoyer@washingtontimes.com.

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