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A legal effort to remove former President Trump from the primary ballot in New York is riddled with issues and likely to fail "even before you get to the 14th Amendment" argument, an election attorney in the Empire State said.
New York’s Board of Elections (BOE) certified the ballot last week with Trump’s name ahead of the state’s Republican primary in April, but Democratic state Sen. Brad Hoylman-Sigal filed a petition with the state’s Supreme Court the same day, claiming Trump is ineligible. The move to certify the ballot followed a bevy of Democrats in the state writing letters to the BOE last year urging commissioners to bar Trump from the ballot, arguing he sparked an insurrection on Jan. 6, 2021, when supporters breached the U.S. Capitol.
The lawsuit this month, however, would likely fail due to a handful of procedural issues, New York Republican election attorney Joe Burns told Fox News Digital in a phone interview Monday.
"Number one, in order to get into court, these individuals would have to be qualified objectors. While they sent letters to the state Board of Elections demanding that Trump be kept off the ballot, that’s not a proper objection under New York State law. So, right off the bat, they have a bit of a problem with standing as objectors. That's number one."
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Former President Trump gestures to the crowd at a campaign event on July 1, 2023 in Pickens, South Carolina. (Sean Rayford/Getty Images)
Burns previously explained that standing is generally limited to individuals who filed objections for opposing candidates, and he found it "hard to believe" that any of Trump’s rivals would go to court to take him off the ballot, adding that "any potential objector would have to be a party member."
Secondly, Burns explained, there was only a 10-day window beginning when Trump filed with the Board of Elections to launch a lawsuit aimed to keep him from the ballot.
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"You have a very narrow window to file a lawsuit to exclude somebody from the ballot, and it's not measured from the decision of the Board of Elections, it's measured from when that candidate files their petition in most cases, or certificate, which is what Trump did," he said, noting Trump filed in December.
"The shortest statutes of limitations in all of New York law are found in election law. From the filing of the certificate, they had only 10 days to commence the lawsuit. I think that's another problem that they have."
Finally, Burns said that voters in the New York Republican presidential primary are not casting ballots for one specific candidate, instead they are "voting to bind the delegates at the convention to vote for one candidate or another."
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The New York State Capitol in Albany. (Fox News Photo/Joshua Comins)
"So all these issues with qualifications, the 14th Amendment, in many respects, maybe that's an understatement, they're just flat out inapplicable because the 14th Amendment issues are about holding office, an individual holding office. What's happening here at the presidential primary is simply … binding delegates."
When asked why Democrats are not following established procedures for the lawsuit, Burns was left scratching his head.
"It's hard to say why they didn't take these steps awhile ago, why they didn't dot their ‘Is’ and cross their ‘Ts’ and comply with the requirements for the election," he said.
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Roger Bernstein, New York co-counsel for the petitioners, told Fox News Digital in comment Tuesday that "the case has been properly filed" and that petitioners are "perfectly well-qualified."
"The Petitioners are perfectly well-qualified to bring this case and the case has been properly filed. Petitioners have a very well-founded concern that an insurrectionist should not be able to take over the reins of government and have another chance to destroy the constitutional framework for presidential elections. And even though this is a primary election, the disqualification issue should be raised now, because it is unfair to voters to offer them an opportunity to vote for a primary candidate who cannot run in the general election," Bernstein said.
The lawsuit comes after Democrat efforts to bar Trump through the BOE failed, which Burns predicted more than a month ago, when he explained the Board of Elections is "a ministerial body" that was simply evaluating if a candidate is "nationally known," not whether Trump is in violation of the 14th Amendment.
There are three ways candidates for president can get on the primary ballot under the Republican plan in New York, including: candidates showing they are eligible to receive presidential primary matching fund payments; filing a designating petition of signatures of 5,000, or 5%, of enrolled Republican voters in the state; or by claiming a candidate is a nationally known and recognized individual.
Hoylman-Sigal was the lead author of a letter to the BOE in December, calling on commissioners to bar Trump from the ballot, arguing he sparked an insurrection on Jan. 6, 2021. Democrats, both in New York and other states seeking to remove Trump, say the former president’s actions on Jan. 6 violated a clause in the 14th Amendment that prevents people who "engaged in insurrection or rebellion" against the Constitution from holding political office.
Ranked choice voting comes in multiple forms and is used in a wide variety of states and localities around the U.S. (PAUL J. RICHARDS/AFP via Getty Images)
"These are unprecedented times, when a president of the United States incites an insurrection attempting to overturn the results of the democratic election in our nation," Hoylman-Sigal said last week, according to Politico. "We cannot let that stand."
Burns told Fox News Digital this week that the BOE correctly allowed Trump on the ballot, as he is a nationally known individual.
"They did what they're legally required to do by election law. The only thing they have to determine is whether these individuals are nationally known candidates. All these other considerations are outside of their scope," Burns said Monday of the BOE’s determination to put Trump on the ballot.
Simultaneous to efforts in New York to remove Trump, the U.S. Supreme Court heard oral arguments last week amid an effort in Colorado to remove Trump from the ballot, arguing him appearing on the ballot would violate Article 3 of the 14th Amendment. Supreme Court justices appeared dubious of Democrat efforts to remove the former president, according to audio of the oral arguments reviewed by pundits and experts.
Trump attorneys, as of Monday, are seeking a stay of the New York case pending the Supreme Court's Colorado decision.
Bernstein told Fox News Digital that it was decided to "adjourn presentation" on the case until SCOTUS' ruling on the Colorado case.
"Due to the pending U.S. Supreme Court case concerning disqualification of former president Trump and the issues that that court appears to be close to deciding well before the April primary in New York, it has been decided to adjourn presentation of this case to the New York State Supreme Court until there is a decision by the US Supreme Court. Further steps may be taken at that time," Bernstein said.
The U.S. Supreme Court is seen, Nov. 15, 2023, in Washington. (AP Photo/Mariam Zuhaib, File)
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Burns, citing fellow experts, said the Supreme Court could even unanimously rule in favor of Trump.
"I think most of the pundits out there are thinking that number one, that it's going to be a pretty lopsided victory for Trump. Whether it's seven-two, eight-one, or maybe even nine-zero," he said of how the Supreme Court Justices could rule. "The other thing I think you're hearing out there from folks is that they're going to act pretty quickly. This is not something they're going to sit on for a long time."
