Nothing Could Be a More Significant Threat to Donald Trump and his White House Run Than Getting Kicked off the Ballot: Election officials in New Hampshire, Michigan, and Arizona are looking into how they might block former President Donald Trump’s access to state ballots for the 2024 election. If they succeed, other states will follow.
Former President Donald Trump Mug Shot.
While many Biden supporters are hoping Trump will be the Republican nominee, others on the Left remember how delighted they were to have him as Hillary Clinton’s opponent in 2016. And they don’t want to make that miscalculation again.
So some on the Left are turning to a longshot interpretation of the 14th Amendment, where Section 3 says: “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.”
The key word there is “insurrection,” as in the Jan. 6, 2021 Capitol riot.
While only a handful of state election officials have said they are investigating the matter, it’s a national effort. The leftwing group Free Speech for the People sent letters to top state elections officials across the country to demand Trump be kicked off the ballot.
But this national effort suffered a big setback last week after U.S. District Judge Robin Rosenberg, a Barack Obama appointee, dismissed a lawsuit in federal court in Fort Lauderdale, Fla., calling for Trump’s disqualification.
However, Rosenberg didn’t rule on merits of the 14th Amendment argument, only wrote, “Plaintiffs lack standing to challenge Defendant’s qualifications for seeking the Presidency.” The judge also wrote, “an individual citizen does not have standing to challenge whether another individual is qualified to hold public office.”
Two other court rulings occurred regarding Trump allies accused of participating in an insurrection. Free Speech for the People attempted to disqualify Reps. Marjorie Taylor Greene, R-Ga., and Madison Cawthorne, R-N.C. A federal court in Georgia ruled Greene didn’t participate in the riot, and thus was eligible to run. Meanwhile, a federal appeals court ruled against Cawthorne, but the ruling came after he lost the Republican primary.
The recent Florida federal court ruling doesn’t address the core issue. But it does tell us that for a court to block ballot access, it will first require action by a secretary of state or other election official, who will in turn be sued by a campaign.
That gets into how an “insurrection” is defined.
The problem is section 3 was in the context of the Confederate rebellion, the goal was to prevent Confederate leaders such as Jefferson Davis from holding high federal office.
As an aside, it is interesting the text only specifies, members of Congress or an elector in the Electoral College, but doesn’t specify the president, with the words, “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President.” But let’s ignore that point for now.
Another problem is due process.
Donald Trump hasn’t been charged, much less convicted, of insurrection against the United States. He was impeached for incitement to insurrection by the House of Representatives in the days after Jan. 6, but the Senate acquitted him after a trial, albeit a majority voted to convict–which would have had the effect of disqualifying him from running again.
Two of Trump’s four indictments deal with his attempt to overturn the result of the 2020 presidential election, the case in the District of Columbia brought by Special Counsel Jack Smith and the case by Fulton County, Georgia District Attorney Fani Willis.
And guess what? Neither charges insurrection. Both indictments are mostly various counts alleging a criminal conspiracy.
Still, perhaps federalism would allow individual state election officials to make the call.
In New Hampshire, the Republican Secretary of State David Scanlan said he is getting demands to block Trump from the ballot and is conducting a legal review on the matter with counsel.
An activist in Michigan has sued Michigan’s Democratic Secretary of State Jocelyn Benson to declare Trump is ineligible. Benson said she is looking into the matter.
Perhaps the official that has gone the farthest is Arizona’s Democratic Secretary of State Adrian Fontes, who said he’s planning to possibly challenge Trump’s ballot access.
This comes even after the Arizona Supreme Court ruled only Congress would have the right to make that determination. Fontes told ABC News: “If that was the case, then no constitutional qualifier applies. So, a 23-year-old born in Poland, for example, who never became a citizen, could run for president in Arizona.”
That’s not the worst argument. A constitutional requirement is only as relevant as the government authority’s willingness to enforce it. But the Fontes argument that this insurrection case is as clear cut as the age and citizenship requirements for running for president are at best a stretch.
Legal scholars are debating the issue, but again, one must wonder if any legal scholar would support this thinking if the candidate in question weren’t named Trump.
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