Candidates have been banned in many instances and many states
by John F. Banzhaf
Connecticut has just become the 13th state in which officials are considering banning former president Donald Trump from the ballot based upon the controversial Section 13 of the Fourteenth Amendment to the Constitution, notes public interest law professor John Banzhaf.
This most recent challenge to Trump’s candidacy comes in the form of a formal request filed by New Haven Alderman Maceo Troy Streater, and civil rights lawyer Alex Taubes, with Connecticut’s Secretary of the State Stephanie Thomas, asking her to conduct a fact-finding hearing on the matter.
This parallels formal legal demands pursuant to Section 13 filed by Prof Banzhaf in Arizona, Arkansas, Connecticut, Florida, Georgia, Maine, Michigan, Nevada, New Hampshire, New Jersey, Ohio, North Carolina, and Pennsylvania which also request a fact-finding hearing.
Those are all states in which some consideration of barring Trump from the ballot is reportedly already taking place.
For example, Thomas’ office had said: “The issue raises questions on both federal constitutionality and state election laws. . . Our attorneys are diligently reviewing Connecticut’s election laws, over which this office has jurisdiction, to ensure we have the proper interpretation.”
In contrast, Colorado Secretary of State Jena Griswold called Trump a “liar”: “Trump is a liar with no respect for the Constitution . . . To say that a section of the 14th Amendment is election interference and considering how to uphold the Constitution is election interference is un-American . . . We know that the former president is a liar who will do everything he can to hold onto power.”
Unlike some who argue that Section 13 is “self executing” – i.e. that no further legal proceedings are required – Banzhaf notes that another section of the Fourteenth Amendment which says than no person can be deprived of any “liberty” or “property” type interest without due process of law means that there must first be an adjudicative (fact-finding) hearing before Trump could be removed from ballots.
At such a hearing, which could be performed by a court or by an agency such as the Office of the Secretary of State, Trump would be entitled to a number of procedural protections including the right to put on evidence and to cross examine witnesses against him. That’s what courts have said “due process” means, explains Banzhaf, who has taught the law of agencies for more than 40 years, and won many noteworthy legal victories at a variety of agencies.
Then and only then – if he has been found to “have engaged in insurrection or rebellion” after a fact-finding (adjudicative) hearing at which he is accorded due process – his name must be removed, says Banzhaf.
To refute those who argue that preventing candidates from appearing on ballots is un-American and/or undemocratic, a new report shows that such efforts are not uncommon, and have frequently been successful.
It detailed a number of situations where candidates were disqualified in states across the country, including one in Connecticut. The report shows that “All 50 states and the District of Columbia have excluded candidates who do not meet requirements to appear on the ballot, and excluding Trump and other disqualified insurrectionists can be done through the same mechanisms.”
In addition to prompting serious consideration of this issue in states where it is already being discussed, Banzhaf’s and other formal legal requests which have just been filed with the secretaries of state of other states may help avoid (provide an alternative workaround to) the frequent failure of similar efforts to disqualify Trump, former president Barack Obama, and others – a lack of legal standing – explains Banzhaf.
He should know since he 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 for “Debategate” 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.
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 in fact “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 noted 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.
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 sentences 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 full legal 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 or officer 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 court 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 preliminary 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 simply 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.
Author is Professor of Public Interest Law Emeritus at George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow of the World Technology Network, the Founder of Action on Smoking and Health (ASH), and inventor of the “Banzhaf Index”.