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”.
Categories: Commentary
Can you say “election interference”? If you can, you’re most likely a Democrat.
Unconstitutionality at it’s finest..
What happened to “innocent until proven guilty”? Excluding a man simply because you hate him doesn’t hold water. It seems to me, based on Trump’s poll numbers, the backlash might be worse than the Jan. 6 incident if any state decides to disqualify him with or without Constitutional process. Even so, it is just as fraught with danger to the country as the DNC’s apparent decision to refuse debate and support a mentally incompetent octogenarian.
Do our votes matter or are we being run by an unelected ruling class?
The problem is that the verdicts from kangaroo courts within banana republics that function on a two-tiered system of justice cannot evidence anything.
MAGA! The Republic Forever!
Once again I see Democrats who are intentionally confusing an indictment with a conviction. What about due process, and the idea of being presumed to be innocent, until proven guilty ? Have these tenets of our judicial system been altered, ruled unnecessary, or dangerous, or do they not apply to Donald Trump ?
They have been conditioned. This is how critical, marxist theory works. All light skinned people are guilty until they admit their guilt and speak outwardly against the US, westernism, nuclear families, heterosexuality, Christianity and capitalism. Innocent until proven guilty is the opposite of so called anti racism thus undermining our culture, Constitution and country.
I agree wholeheartedly with all the comments above. The good thing is that desperate people do desperate things, and in doing so, out themselves. I urge everyone to make a list of who these fascists are, and do your best to make sure they never hold public office again.
“By their deeds you will know them” – Matthew 7:16
These lunatic leftist Democrats will bring on a full blown hot civil war. Let him run and let the voters sort it out in a free and fair election.
I for one would love a civil war. Lefties are easy targets they stand in line just like the british did. And they have no real sense of “safety” I bet they believe a car door will stop a bullet. You go right on thinking that way. We will see you in the ditches. Oh, I do not promote violence I just see where things are going. Because you are just spoiled children. Much like myotonic goats you will freeze and just fall over.
I’m not sure but I believe that DJT has not been found guilty of any of the
bogus crimes the left says he did, it sounds like to me they are scared S-less
of DJT, because they know he will win another election !!
So the left feels if they get DJT’s name removed from the ballot all will be fine,
what these leftist fools do realize, Trump supporters will write in his name anyway
and he will become President again and Make America Great Again, not the freak
show we have today……………… Wake up people, your vote is being stolen again !!
“Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington (CREW), which helped file the suit on behalf of six Republican and independent voters, equated the provision to other qualifications for running for office.
“The 14th Amendment says that anybody who swore an oath to support the Constitution and then engaged in insurrection is disqualified,” Bookbinder told The Hill.
“The Constitution says you need to be 35 years old to be president, [you need] to be a natural born citizen. And there are procedures in place for ensuring that only qualified candidates can run and can serve … This is sort of just another constitutional qualification.”
While Trump has railed against the effort as “another ‘trick’ being used by the Radical Left Communists, Marxists, and Fascists,” the renewed look at the little-used provision was sparked by a law review drafted by two conservative law professors.
“It disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election,” William Baude and Michael Paulsen wrote of Section 3 of the amendment.
Michael Luttig, a former federal judge appointed by former President George H.W. Bush, and Harvard law professor Laurence Tribe have argued in recent weeks that Trump is barred from being on the ballot again because of the 14th Amendment clause.
The two wrote in a piece for The Atlantic that Trump’s efforts to overturn the 2020 election and the resulting attack on the U.S. Capitol on Jan. 6 place him “squarely” within the scope of the clause.
“The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause,” the two wrote.”
Colorado suit filed by Republicans. Comments by Republican justices, legal efforts.
I know treason when I see it. Of course the writer has most likely ignored or did not watch the 1/6 investigations- with hours and hours of filmed evidence and testimony under oath.
Hey! Just curious: Ever heard of Joe Biden, Hunter Biden, Barisma, the selling of access to the V.P., the completely fraudulent Russian dossier & the then inter-related President Donald Trump impeachment masquerade by any chance? Your “open” border defying federal law. Your “reverse” discrimination policies which defy the US Constitution’s Civil Rights amendments. It is all, in fact, your cohorts who are guilty of treason and who are deserved of the punishment of US Code Title 18 which may ultimately be: death. In any event, ever heard of such realities now being uncovered within this nation?
I didn’t think so. You view & absorb all the government propaganda broadcasts and print accounts provided to you each day by the fake news networks….you were almost certainly never a “nurse” – a profession comprised largely of highly dedicated, learned, hard-working (almost entirely) women who certainly know how to very easily and adeptly distinguish the basic & fundamental biological & physiological differences between MALES and FEMALES!
This nation will NEVER allow itself to fall to your dystopian totalitarian government utilizing your ruse in using mainstream media to spread your lies & propaganda as your pathetic chicanery is obviously NOT being bought into by the vast majority of independent-minded American citizens, as per countless national polling results, who distrust this biased media, know full well & forever more that males can NEVER become females, and who believe that their country is headed down a dangerous path.
But you realize all that – despite your comrades’ pressure for you to continue spew nonstop nonsense, create divisiveness in the name of “equity” & “righteousness”, and eventually ignite violence in order to install your one world order – which is precisely why you must forcibly and lawlessly import citizens from around the third world countries of the globe in hopes of conquering these borders and killing & imprisoning those who remain free in order to establish your Godless reign.
And in the end? Just as the bleak failures of nations that tried before you, you fail and you fall……miserably. And God wins. As always. And ever shall be. MAGA.
Funny, the retired Dem/Progs can’t hear that sucking sound of their tidy pensions and trust funds being vacuumed up by their leaders and their corporate sponsors. Oh well, they can always exchange recipes on how to stretch that government cheese and a half dozen eggs though the month. Good luck suckers!
So that disqualifies every Commiecrat in the Vermont legislature that voted for gun control. And not only that they are guilty of purjury under the Vermont constitution.
If there was an insurrection (violent overthrow of the (U.S. government by violent means) where were all the guns in the hands of the insurrectionists. It was a protest of the fraudulent and unconstitutional election where several states violated the constitution by changing voting laws and rules without being approved by those state’s legislatures. It’s funny how you Communists want to use the Constitution to keep Trump off the ballot but can’t follow the Constitution for the 2020 election.
UNCONSTITUTIONAL MEANS ILLEGAL.
Text of Section 56:
Oaths of Allegiance and Office
Every officer, whether judicial, executive, or military, in authority under this State, before entering upon the execution of office, shall take and subscribe the following oath or affirmation of allegiance to this State, (unless the officer shall produce evidence that the officer has before taken the same) and also the following oath or affirmation of office, except military officers, and such as shall be exempted by the Legislature.
The Oath or Affirmation of Allegiance
You do solemnly swear (or affirm) that you will be true and faithful to the State of Vermont and that you will not, directly or indirectly, do any act or thing injurious to the Constitution or Government thereof. (If an affirmation) Under the pains and penalties of perjury.
The Oath or Affirmation of Office
You do solemnly swear (or affirm) that you will faithfully execute the office of ____ for the ____ of ____ and will therein do equal right and justice to all persons, to the best of your judgment and ability, according to law. (If an oath) So help you God. (If an affirmation) Under the pains and penalties of perjury.[1]
It’s interesting how Republicans and conservatives hold credibility in the eyes of liberals when they affirm liberals’ propaganda-informed bias. In all other instances, Republicans and conservatives are privileged, racist, hateful bigots, yes?
Well detailed and thought out response! Agree!
You mean like the 10000+hrs of exculpatory video. You “protest to much”.
BTW an article is not proof of anything. Actual documents , videos and legal papers are. You don’t even talk a good game based on real information. These same “papers ” claim all kinds of things that are in fact proven false and are owned in most part by the same people. The only reason this is even being brought up is that Trump will win. They and especially you, do not want that to happen. Well, get over it, now because just like Christ returning, Trump will be the President again. Let me guess you still think he grabbed some girl by the p***.
Another debunked lie by the likes of you and your ilk. He was talking about how some women have no more morals or lack any shame when it comes to being around rich powerful people.
I guess that kind of behavior is acceptable to you as your side keeps bringing all kinds of “Dog Whistles” to an argument. What is next you are going to say her is a racist? Do you also believe Orpah actually is helping the people in Maui, and that she has NOT built her life on the misery of others especially abuse victims and her own kind?
And as you can see I leave my OWN NAME!
That’s good to know. Trump is going to win anyway, and if I don’t see his name I plan to write him in. Or will that ‘spoil’ the ballot? Maybe they will just remove the blank space for write-ins. Whoops, I guess I shouldn’t give them ideas. Like Trump, I still have an idea about what America used to be, should be, and could be again.
A TOAST
The wineglass elm
Of storied praise
That graced the realm
Of kinder days,
And rose to pledge
An endless toast
At empire’s edge,
Is now a ghost.
But on a day
Before the fall,
I made my way
Past wood and wall,
And from the grass
The pasture wore,
That graceful wineglass
Rose once more.
Vines wrapped the tree
As round a sheaf,
Quite prettily,
With flaming leaf,
And pendant from
Its tapered shape,
Hung hue of plum:
The ripened grape.
Could there be mist
In that warm shade?
Pale vapors kissed
A promenade
Of stateliness
In summer white
Where numberless
As stars at night
Were all the stitches,
Ruffles, pearls —
The handmade riches
Countless girls
Had sewn, by candles,
Patiently,
For rituals
Of courtesy.
As fine as ever,
Nod and bow,
The graces never
Thought of now:
Men tipped straw hats,
And ladies smiled.
White canes, white spats;
Each man, and child
And woman seemed
To walk in bliss;
No dream I’d dreamed
Was quite like this.
What gods held sway
With canes and fans
To rule the day?
Americans
Who lightly stepped,
And softly spoke
Through vigils kept
For modern folk
By one terrific
President:
He shook a stick
And bullies bent
Like feeble reeds
Before a gale.
Through his brave deeds,
We would prevail:
A Teddy bear
For all to love.
Though he was fair,
He was no dove,
And if he rode
A little rough,
When might’s bestowed,
You must be tough.
The day was late,
The light soon killed.
Above the gate,
The sky was filled
With sunset’s tranquil
Potency
Against the chill
Come over me.
But like a star,
Some hope still burned
As if T. R.
Had just returned:
A strong foundation,
Now as then,
To make our nation
Great again.
there are several historical and personality similarities between TR and DJT
Did Trump actually attempt to overturn the election or in his rude and crude manner attempt to call into question the legitimacy of the election in select states? The Democrats fought tooth and nail to prevent, delay or cover up serious investigations.
He’s ben convicted of NOTHING. Much as I despise him as a person, to ban him is openly Civil War.
And if he IS “convicted”? What significance does that have in this now banana republic that has a puppet government that is planning to lynch him via a kangaroo court?
Any idiot who thinks Jan 6 was an insurrection, and who further thinks that Trump took part in it needs to be barred from every ballot but the one for class clown. Yes, I am certain that some people in state & federal office believe it anyway. But the ones pulling the strings know full well that it’s nothing but a joke.
They also know they can’t win a free and fair election.
Awesome! An entirely accurate descriptive of the traitorous nonsense we are being subjected to.
The constitution that they all took an oath to defend means nothing to these people.
The fact that this is even a possibility is final proof the pseudo-government is in peril and grasping any illegal straw to control the American people .
The 14th Amendment has only 5 sections! I think people are adding the “1” in front of the 3! Section 3 mentions insurrection and rebellion.
I have several copies of the Constitution on my desk. A must read.