Dozen States Must Now Consider Banning Trump From Ballot; 12 Formal Legal Removal Demands Filed; Might Avoid Problem of Standing
States Are Considering To Ban Trump From Ballot
WASHINGTON, D.C. September 6, 2023) – Secretaries of State and other officials in at least a dozen states – including Arizona, Arkansas, Florida, Georgia, Maine, Michigan, Nevada, New Hampshire, New Jersey, Ohio, North Carolina, and Pennsylvania – are considering whether to prohibit former president Donald Trump from appearing on the presidential ballot, or to at least hold hearings to help decide how to deal with growing demands that he be barred from office because of Section 3 of the Fourteenth Amendment.
In addition to prompting serious consideration of this issue in states where it is already being discussed, these formal legal demands which have just been filed with the secretaries of state of each of these states may help avoid (provide an alternative workaround to) the failure of similar efforts to disqualify Trump, former president Barack Obama, and others – lack of legal standing – explains public interest law professor John Banzhaf.
Professor Banzhaf notes that Section 3 and its application to the events of January 6th have already had some real-world consequences: in New Mexico a county commissioner lost his office; a member of Congress was found to be covered by the section; and another member of Congress escaped removal only because he was found not to have engaged in insurrection.
Section 3 of ARTICLE XIV bars former civilian officials from holding office if they “shall have engaged in insurrection or rebellion” against the United States government. But although there is considerable evidence, as well as expert opinion, that Trump has “engaged in insurrection,” there is no official finding to that effect.
So, since ARTICLE XIV also mandates that “nor shall any State deprive any person of life, liberty, or property, without due process of law,” and because under virtually any reasonable interpretation of this constitutional provision, not permitting Trump to run for office and/or to acquire Electoral College votes in a state would be to deprive him of a liberty and/or property interest, no state could keep him off the ballot unless he has been found to have “engaged in insurrection” in an evidentiary (adjudicative) hearing at which he was accorded due process.
In this regard it should be noticed that the adjudicative hearing need not be a criminal trial, and proof that Trump engaged in insurrection need not necessary meet the criminal standard of proof beyond a reasonable doubt.
Section 3 Of The Fourteenth Amendment
As the impartial Congressional Research Service has determined, “Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary. Reconstruction Era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy, and Congress in some cases took action to refuse to seat Members.”
The simple fact that both appear in the same amendment means that one (Section 3) does not override the other (due process clause) as some experts have suggested, especially since it is not only possible but also very reasonable to interpret the Constitution in such a way that both are given effect – i.e., a candidate can be removed from a ballot under Section 3, but only if he is found to have engaged in insurrection in an adjudicative hearing at which he was afforded due process.
Thus, to constitutionally bar Trump from the ballot, there must first be a due process hearing, held for example by the Secretary of State, in which Trump is found to have “engaged in insurrection.”
As an alternative, a state could announce that Trump is barred from the ballot based upon publicly available information of which a state agency may take administrative or official notice (similar to the judicial notice taken by a court), explains Banzhaf, who has taught Administrative Law for over 40 years, and won several noteworthy agency cases (e.g., involving smoking bans, antismoking messages on TV, stronger warning labels on foods and birth control pills, safety standards for school buses, etc.).
Such an announcement barring him from the ballot would force Trump to seek reversal by appealing the adverse decision to a court. There, in court, Trump could receive the required due process (in a de novo hearing), and a finding by that court that he did in fact engage in insurrection could provide the legal basis for a state to keep his name off the ballot.
Recognizing that legal experts have split on the effect of Section 3 regarding Trump – with some legal scholars (including several prominent conservatives) writing that Section 3 is self executing and permits or even requires Trump’s removal, while others maintain that it cannot be used for that purpose at all – Professor Banzhaf has suggested a middle ground; that states considering these issues should, at the very least, first hold a legislative-type non-adjudicative hearing before taking any final action.
The purpose of such a preliminary hearing, he says, would not be to decide whether or not Trump did in fact engage in insurrection, but rather to give all interested persons (including the dueling legal experts) an opportunity to be heard, and to respond to questions about how a state should proceed, what should be the required standard of proof, what procedural protections does due process require in such an adjudicatory hearing, etc.
If state officials refuse to even hold such a preliminary legislative-type hearing to explore the many issues, and to permit a variety of voices to be heard, such precipitous action will only increase public suspicion and lack of trust in government, argues Banzhaf.
Furthermore, any state’s refusal to do anything at all in response to a formal legal removal demand may provide a legal basis for establishing standing, says Banzhaf, who was held by a federal judge to have legal standing to sue to require the appointment of an independent counsel when his own formal legal demand seeking such an appointment was denied.
He also played a major role in obtaining special prosecutors for Richard Nixon, helped defeat Hunter Biden’s so-called “sweetheart” plea deal, and filed the formal legal complaint which led to the indictment of Trump and many of his alleged co-conspirators in Georgia.