Fwd: GMOM - Should courts decide whether Trump is on the ballot?
Charlie Cooper
January 2, 2024
Colleagues: I hope you will join us on our next teleconference on Monday, January 8, at 7:30 pm where we will continue to work toward enacting a Maryland bill to bar ineligible candidates from our ballots. Happy New Year! -- Charlie
The Supreme Court should decide swiftly
Introduction
In the wake of decisions in Colorado and Maine, most observers expect the U.S. Supreme Court to decide key questions about disqualifying Donald Trump from serving in office. Despite complaints voiced in this space that the Court has been corrupted by big money donors and by a network of conservative advocates, I am hoping that the Supreme Court does act swiftly and with broad effect to decide the following questions:
- Does Section 3 of the 14th Amendment (“14.3”) apply to the office of the presidency?
- Did Donald Trump engage in insurrection or rebellion against the United States or give aid or comfort to its enemies?
I hope this concise guide to the activity around disqualifying candidates under 14.3 will prove helpful to you as we face a very interesting New Year.
Principles
The guiding principle we follow at GMOM is that the Constitution and applicable law should govern this process and not anyone’s “common-sense” opinions or emotions.
Section 3 of the 14th Amendment potentially affects not only Donald Trump but dozens or even hundreds of candidates who are running for office in 2024. Some of them may have already been convicted of acts related to the 2020 election results, but – despite protests to the contrary – history shows clearly that criminal justice and qualification for office are governed by different laws and procedures.
Citizens for Reform and Ethics in Washington, one of the groups suing to remove Trump from state ballots, says, “No one who has been formally disqualified under Section 3 [in the 19th century] was charged under the criminal ‘rebellion or insurrection’ statute (18 U.S.C. § 2383) or its predecessors.”
In 2022, Judge Francis J. Matthew of New Mexico’s First District Court permanently enjoined Otero County Commissioner Couy Griffin from holding office under 14.3. Griffin had been convicted of trespass for his actions on January 17, 2021 at the Capitol in Washington, DC, but not specifically for insurrection.
Persons challenged as being ineligible for office are entitled to due process of law. This can happen in a number of ways, depending on the authority of the officer or entity making the decision under state law. Eligibility to serve as President is a federal Constitutional issue. Eligibility to appear on a ballot is an issue that depends largely on state law.
Background
Eligibility to be President is set out in the Constitution:
- Age 35 or greater and resident in the U.S. for 14 years
- Born in the USA
- Amendment 14.3
Conduct of federal elections is left to the states. In a Presidential general election, voters choose candidates for the Electoral College. Most often, those people are selected by presidential candidates nominated by a political party, and the candidate is named on the ballot – not the electors. Procedures to make primary ballots vary greatly among states.
Each state has procedures for making the ballot. Some states have laws or regulations that require candidates on a ballot to be eligible to serve in the office sought, and some assign to a specific official or body the responsibility to determine eligibility. (Maryland, however, does not, in general.) The laws/regulations may not be the same for the primary and the general election.
State and local officials must enforce the U.S. Constitution. For example, under Article I, Section 9 of the Maryland Constitution, all officials take an oath that says, in part: “I … do swear (or affirm …) that I will support the Constitution of the United States….” An official should not arbitrartily decide that 14.3 will not be enforced.
State-by-State Roundup
Colorado: A lower court ruled that Trump engaged in insurrection but that section 3 of the 14th Amendment does not apply to the office of President. Both sides appealed. The Colorado Supreme Court (CSC) by a 4-3 margin upheld the finding of engagement, overturned the finding that the office of President is not covered, and ordered his name removed from the primary ballot. The CSC stayed its order to allow the federal court to rule, and it is very likely that Trump will appear on the primary ballot. Trump filed an appeal in federal court. [See paragraph 257 of the decision document linked in this paragraph for CSC order.]
Minnesota: The State Supreme Court dismissed the petition to remove Trump from the primary ballot, explaining, “There is no state statute prohibiting a political party from having a candidate on its primary ballot who is ineligible to hold office.… However, the court added that the plaintiffs could bring a new petition regarding the general election ballot following the upcoming Republican primaries.” (https://www.lawfaremedia.org/article/minnesota-supreme-court-dismisses-trump-disqualification-suit)
Michigan: The State Supreme Court upheld a lower court ruling keeping Trump on the primary ballot. “The court left the door open for a new challenge to bar Mr. Trump from the general election ballot.”
Maine: After a hearing, the Secretary of State found that Trump participated in insurrection and is ineligible to appear on the ballot, pursuant to Maine law. It will be appealed in state court and may also find its way to the Supreme Court.
Oregon: A lawsuit was filed on asking a court to order the Secretary of State to remove Trump from the ballot. The Secretary of State made it clear that she relied on the Oregon Department of Justice in her decision and that her decision applies only to the primary election.
Nationwide tracker of cases.
News
Baltimore Sun: Here is my letter to the editor criticizing political speculation and calling for the U.S. Supreme Court to issue a speedy ruling as to whether Trump is disqualified to serve as President under 14.3 of the U.S Constitution.
ProPublica: Clarence Thomas threatened to quit the Court over money woes. He made a behind-the-scenes plea for higher salaries for Supreme Court justices. He also found several ways to garner gifts and income from wealthy benefactors, and his wife made a six-figure salary with the conservative Heritage Foundation.
Courthouse News: The Arkansas NAACP and other citizen groups filed suit alleging that reapportionment of the Arkansas legislature constitutes a racial gerrymander that violates the Voting Rights Act. But in early December of 2023, a panel of the the 8th Circuit Court of Appeals in St. Louis agreed with a lower court judge who ruled that the Voting Rights Act permits only the U.S. Attorney General to file suit -- not private citizens. If upheld, this ruling will overturn almost 60 years of practice and a prior U.S. Supreme Court decision.
Reuters: A Democratic candidate for Congress is using an AI bot to make phone calls to voters. The creators, who intend to mainly work with Democratic campaigns and candidates, use data about the person being called to customize a conversation. The software discloses that the "caller" is an AI bot. The bot can converse in 20 languages.
GMOM and For the People -- Maryland teleconference
Meeting Monday, January 8, 2024, 7:30 pm
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Onward together,
Charlie Cooper
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Get Money Out - Maryland · Baltimore, MD 21209, United States
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