1 year ago
The campaign to keep former President Donald Trump off the ballot under constitutional grounds is not finding much reception with an audience who could quickly force a resolution: Democratic secretaries of state.
The nation’s top election officials say they doubt that they can deploy a largely untested legal theory to disqualify Trump from the ballot under the interpretation of the 14th Amendment — and that they shouldn’t be the ones to try it.
“The United States Supreme Court is the appropriate place to resolve this issue. The bottom line is it’s not about us at all. It doesn’t matter what a secretary of state does because we expect the Supreme Court to be the final arbiter,” said Michigan Secretary of State Joceyn Benson, a Democrat.
The theory argues that Trump is barred by the 14th Amendment from holding public office because he was party to an insurrection: the Jan. 6 attack on the Capitol. The idea is likely to be met with even more skepticism from Democratic secretaries of state after the Washington Post reported on Tuesday that the one of the lawyers working on the legal theory is Jason Torchinsky, an attorney with deep ties to the conservative movement.
In an interview with POLITICO, Benson said that she has been in regular conversation with other chief election officials on how to handle the push. Yet the focus on the role secretaries of state could play in it is “misplaced,” she said.
“It’s not even appropriate for a state to give the secretary of state authority to do it. It shouldn’t be a unilateral decision from a political appointee or elected official. These should be determinations made by a judicial official,” she said.
Attempts to block Trump from the ballot remain in their infancy. The liberal watchdog group Citizens for Responsibility and Ethics in Washington, or CREW, filed a lawsuit in Colorado state court looking to block Trump there. Another group, Free Speech for People, had previously sent letters to a handful of secretaries urging them to bar Trump, and sued in Minnesota on Tuesday to get an order to that effect as well.
Minnesota Secretary of State Steve Simon, also a Democrat, said in a Tuesday interview that the law was clear in his state: Only Minnesota’s courts could make that call.
“We are not the eligibility police,” he said. “We don't have investigators, we don't lie in the bushes with binoculars to determine whether a candidate is really lying her head where she says she does for residency purposes. And the same is true for this kind of eligibility challenge.”
Colorado Secretary of State Jena Griswold, another Democrat, previously told POLITICO after the CREW lawsuit was filed that she welcomed clarity from her state’s judiciary. When asked last week if she believed she had the authority to make a call on Trump’s eligibility, she said “the court has to make those determinations and likely will.”
And Adrian Fontes, the Democratic secretary in Arizona, recently told MSNBC that the applicability of the 14th Amendment would ultimately be a decision made by the U.S. Supreme Court. He said previous rulings from his state’s Supreme Court have made clear there is no mechanism to question eligibility there.
“At the end of the day there are nine folks wearing robes in Washington D.C. who are going to make this decision,” he said. “The quicker they do, the better off we’re going to be when it comes to running the election.”
Some Republican secretaries of state — even those who have clashed with Trump — have also said it is not within their power to make that call. Georgia Secretary of State Brad Raffensperger, a Republican who rebuffed Trump’s efforts to overturn the 2020 election, said in an op-ed in The Wall Street Journal last week that he did not have the authority to use the 14th Amendment to block Trump from the ballot, and that doing so would be unwise anyway.
“Georgia law contemplates a legal process that must take place before anyone is removed from the ballot,” he wrote. “Anyone who believes in democracy must let the voters decide.”
Trump and his allies have already started to push back against the campaign to have him tossed from the ballot. Trump spokesperson Steven Cheung previously said it was a “political attack” that was “stretching the law beyond recognition” and compared it to his various indictments.
“There is no legal basis for this effort except in the minds of those who are pushing it,” he said.
The former president’s legal team has already sought to intervene in the Colorado lawsuit as well. Attorneys for Trump initially asked to kick the case to federal courts, which could have been a more direct path to the Supreme Court.
Trump’s legal team ultimately backed down and assented to the case continuing, for now, in state court. A federal judge ruled the case should remain there on Tuesday.
Trump’s campaign on Tuesday also circulated a letter sent by New Hampshire Republican leaders to the Granite State’s secretary of state, Republican David Scanlan, that urged him to reject “weaponizing Section Three of the Fourteenth Amendment against” Trump.
Scanlan told the NH Journal that he would release his position on the 14th Amendment on Wednesday.
Josh Gerstein contributed to this report.
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