Legal Demand to Remove Trump From Ballot Filed in NH; Proposes Public Hearings on Both Evidence and Procedure
Legal Demand Filed To Remove Trump From Ballot
WASHINGTON, D.C. (August 31, 2023) - A formal legal demand has been filed seeking to keep former president Donald Trump off the primary ballot in New Hampshire pursuant to ARTICLE XIV, Section 3, of the U.S. Constitution which provides that "No person shall . . . hold any office" if he had engaged "in insurrection."
Unlike a growing number of legal scholars (including well known conservative ones) who have argued - in view of the proof already in the public record - that no further hearings or other steps are required, and also unlike those who support Trump by arguing that his name cannot be removed from the ballot because he has never been convicted of insurrection, this legal petition takes a middle ground based upon another portion of the 14th Amendment.
The same article of the Constitution [ARTICLE XIV] which mandates removal for those who engaged in insurrection also provides that "nor shall any State deprive any person of life, liberty, or property, without due process of law."
Since under virtually any modern interpretation of this constitutional provision, prohibiting someone from running for office would be to deprive him of "liberty" and/or "property," such a determination would require an adjudicative due process hearing, notes public interest law professor John Banzhaf who has taught the law requiring hearings for over 40 years.
Thus, since the Constitution requires that state officials remove Trump's name from the ballot if he in fact engaged in insurrection, but also that they must first hold a due process hearing, Banzhaf's legal complaint demands that New Hampshire either promptly hold a due process hearing to weigh the evidence against Trump, or simply rule that his name cannot appear on ballots so that he can then promptly get his due process determination in a trial when he appeals that decision to the courts.
The law professor, whose recent filing helped deny Hunter Biden his so-called "sweetheart" plea deal, and triggered the criminal investigation which led to Trump's indictment in Georgia, also played a role in getting special prosecutors for Nixon, and a court order for a independent counsel in another case.
Holding A Non-Adjudicative Congressional-type Hearing
To help resolve various legal issues - e.g. what procedural protections would the Trump due process hearing require, what is the standard of proof needed to disqualify Trump under Section 3, etc. - Banzhaf suggests that Secretary of State David Scanlan first hold a non-adjudicative congressional-type hearing during which all interested persons can make offers (tenders) of proof and legal arguments to help formulate the best procedure.
He also warns Scanlan that "denying this Formal Legal Petition, Complaint, and Demand, and any others which might be filed, without at least holding such a non-adjudicative rulemaking-type hearing - presumably based upon your own inclinations and/or any advice you might receive from other state employees or advisors - would almost certainly give rise to suspicion of unfairness if not bias, and complaints that you did not fully consider the views of all interested persons, failed to take note of key legal and policy arguments, apparently were not aware of key evidence, acted arbitrarily and capriciously, etc."
The legal filing then goes on to point out that "if you hold a rulemaking-type preliminary hearing at which interested groups and individuals can make arguments, proffers of proof, and offer other suggestions, the criticism would be muted because you at least did all that you could do under the circumstances and time constraints to hear and weigh all the evidence and all points of view.
Such a first-step rulemaking-type preliminary hearing would also give the public (through the media) an opportunity to become aware of the arguments and evidence, as well as the constitutional and other issues involved in making final determinations sometime following that preliminary congressional-type hearing."
After conservative talk show host Charlie Kirk claimed that New Hampshire was trying to keep Trump off the primary ballot in 2024, Scanlan's office was flooded with angry calls. In response he said:
“I do not intend to keep Trump’s name off the ballot and never said otherwise... I have asked him (Attorney General Formella) to look into issues related to Article 14 Section 3. I want to understand them if challenges are made... If individuals are going to make challenges to someone’s qualifications to be on the ballot, if challenges are made I’m the one who is going to make the decision whether they are valid or not."
Republican Corky Messner, who ran unsuccessfully for the U.S. Senate from New Hampshire in 2020, said the questions raised by Section 3 need to be taken seriously. “The reason I’m raising this is it’s about the U.S. Constitution and it needs to be looked at and not ignored," Messner said.
If Scanlan refuses to take any action, one way or the other, on this legal demand for exclusion, such a denial may trigger an appeal of that decision to the courts where both the legal and factual issues could be aired, suggests Banzhaf.
