MANY LAWSUITS FILED TO BAR FORMER PRESIDENT DONALD TRUMP FROM 2024 BALLOTS

Recently, many lawsuits have been filed to force state election officials to bar former President Donald Trump from Republican presidential primary ballots. Most of these cases were filed in September, and most are still pending. Their basis is the Fourteenth Amendment, section 3, which says that individuals who had taken an oath to the U.S. Constitution, and then engaged in ‘insurrection", may not hold public office, elected or appointed.

Such lawsuits are unprecedented. Since the end of the Civil War, the only individual who has been removed from public office on the basis of section 3 is a New Mexico County Commissioner, Coey Griffin. He had climbed over barricades at the national Capitol on January 6, 2021, and had then been convicted of trespassing. A state trial court removed him from his position in 2022. He was never actually barred from any ballot, because after his disqualification (which came in the middle of his term), he did not attempt to run for re-election.

One of the lawsuits to keep Trump off ballots was filed by the Center for Responsibility and Ethics in Washington (CREW), the same organization that organized the lawsuit that removed Coey Griffin from his County commissioner seat. On September 6, CREW filed a lawsuit in Colorado, which is described in the next article. Most of the lawsuits have been filed by Texas attorney John A. Castro, who believes he has standing because he is also seeking the Republican presidential nomination.

University of Maryland law professor Mark Graber, an expert on the 14^th amendment, has said with so many lawsuits pending against Trump, there are likely to be divergent outcomes.

He believes the U.S. Supreme Court must decide the issue. Law professor Rick Hasen also advocates that the U.S. Supreme Court settle the issue.

Graber emphasizes that section three does not require a criminal proceeding, and that it is to be decided by a preponderance of the evidence, as in a civil lawsuit. He says that section three’s originalist intent was very broad, because saying "Happy Birthday, Jefferson Davis" was considered treasonous by Republicans in 1865. Therefore, an intention of provoking an insurrection (defined as "an attempt to resist the implementation of federal law by force or violence") would be sufficient for disqualification. Graber stated that a riot is spontaneous, while an insurrection is planned, and if Trump knew there would be an insurrection and provoked it or provided assistance for it, he would be disqualified for future office under section three.

Law Professors Jonathan Turley and Lawerence Lessig argue that the January 6 event was not an "insurrection", and that section three only refers to attempts to aid hostile governments against the government of the U.S., just as the Confederacy was a hostile government that made war against the U.S.

Some law professors believe that section three does not pertain to persons seeking the presidency. Section three names certain offices, and president is not one of them. Section three also has a catch-all category "any office under the United States, civil or military", but some argue that under word usage in the 19^th century, "any office" means appointed office, not elected office.

The editors of this publication believe that the intent of the authors of the 14^th amendment was not to prohibit anyone from running for office, whether the candidate met the constitutional qualifications or not. When the Amendment was written, no government within the U.S. had any ability to prevent any voter from voting for anyone he wished. Governments did not prepare ballots. Instead, any voter could create his own ballot, although most voters used a ballot that had been prepared and distributed by that voter’s favorite party. A voter who used a ballot printed by a particular party was free to alter it, by scratching off names of candidates and writing the name of some other candidate in the margin.

So, the intent of the authors of section three must have been to refuse to seat anyone found to have engaged in insurrection, after the election was over. In the case of presidential candidates, the Constitution already provides that Congress counts the electoral votes, after the electoral college has voted. An 1873 precedent exists that Congress can refuse to count electoral votes for candidates thought to be ineligible. Congress refused to count the three electoral votes cast for Horace Greeley, on the grounds that he had died after November, although before the electoral college had met.

For government to prevent a voter from voting for whomever he or she wishes is a dangerous practice, too often used by authoritarian governments such as Iran and Russia.

See the next article for the status of the Trump ballot access cases, which have been filed in 21 states.

Arizona: Castro v Fontes, 2:23cv-1865, has a hearing on Octmber 31. The case is assigned to U.S. District Court Judge Doug Reyes, an Obama appointee. The judge denied Castro’s request for a Temporary Restraining Order on September 18, but Castro’s request for a Preliminary Injunction is alive and will be considered at the hearing.

California: Schaefer v USA and Trump, s.d., 3:23cv-1451, was filed on August 8. It is assigned to U.S. District Court Judge Janis Lynn Sammartino, a Bush Jr. appointee. On September 25, the judge issued an opinion saying she doubts the plaintiff, Michael Schaefer, has standing; but she is giving him an opportunity to respond. Schaefer is a voter, not a presidential candidate.

Colorado: Anderson v Griswold, state district court, Denver, 2023cv-32577, was filed on September 6. A five-day trial will be held starting October 30.

Connecticut: Castro v Thomas, 3:23cv-1238, was filed in U.S. District Court on September 21, but nothing substantive has happened so far.

Florida: Castro v Trump, s.d., 9:23cv-80015, was filed January 6, 2023. U.S. District Court Judge Aileen Cannon, a Trump appointee, ruled on June 26 that Castro does not have standing, but she did not explain why. Castro has appealed to the U.S. Supreme Court, 23-117. The Court considered whether to take this case on September 26, but won’t announce its decision until October 2 at the earliest.

Florida(2): Caplan v Trump, s.d., 0:23cv-61628, was filed August 24 by three voters. On August 31, U.S. District Court Judge Robin Rosenberg, an Obama appointee, ruled that they don’t have standing. No appeal was filed.

Idaho: Castro v McGrane, 1:23cv-393, was filed September 7. Nothing of substance has occurred yet.

Kansas: Castro v Secretary of State, 6:23cv-1184, was filed September 7. Nothing of substance has happened yet.

Maine:Castro v Fellows, 1:23cv-335, was filed September 5. Nothing of substance has happened yet.

Massachusetts: Castro v Galvin, 1:23cv-12121, was filed September 18. U.S. District Court Judge Myong J. Joun has asked both sides to submit a planned schedule on how to proceed, by October 2.

Minnesota: Growe v Simon, A23-1354, was filed in the State Supreme Court on September 12. The plaintiffs include a former Secretary of State of Minnesota and a former State Supreme Court Justice. The State Supreme Court has accepted the case. Briefs are being written, and three law professors have asked to submit amici curiae briefs. Also the Republican National Committee has asked to submit a brief. The current Secretary of State, Steve Simon, a Democrat, says he is neutral.

Montana: Castro v Jacobsen, 6:23cv-62, was filed September 11. Nothing of importance has happened yet.

Nevada: Castro v Aguilar, 2:23cv-1387, was filed September 7. Castro’s request for an injunction is pending. It is before U.S. District Court Judge Richard Boulware, an Obama appointee.

New Hampshire: John Anthony Castro, who has filed so many of these lawsuits, filed in state court (Merrimack County Superior Court) on August 29, but that case has been dropped and Castro has a case in federal court, Castro v New Hampshire Secretary of State, 1:23cv-416. It was filed September 11 and has a hearing on October 20 before U.S. District Court Judge Joseph LaPlante, a Bush Jr. appointee.

New Mexico: Castro v Toulouse Oliver, 1:23cv-766, was filed September 8. On September 18, Castro filed a brief that had been requested by U.S. District Court Magistrate Gregory J. Fouratt, who had said he sees some procedural problems with the case.

North Carolina: Castro v Bell, e.d., 5:23cv-496, was filed on September 7. On September 18, U.S. District Court Judge Louise Wood Flanagan, a Bush Jr appointee, said the filing has procedural problems which must be fixed by October 2.

Oklahoma: Castro v Ziriax, w.d., 5:23cv-781, was filed September 6. The Oklahoma Republican Party has asked permission to intervene.

Pennsylvania: Castro v Schmidt, m.d. 1:23cv-1468, was filed September 6, but on September 27 Castro voluntarily dismissed the case.

South Carolina: Castro v South Carolina Election Commission, 3:23cv-4501, was filed on September 7. On September 27, Magistrate Shiva V. Hodges refused to grant a T.R.P. on the grounds that Castro had not shown that he is harmed by Trump being on the ballot. Castro had argued that if Trump were removed from the ballot, then it would be easier for Castro to raise more campaign contributions and to win votes, but the Magistrate said there is not yet enough evidence for that.

Utah: Castro v Henderson, 2:23cv-617, was filed on September 18. Nothing of substance has happened yet.

Virginia:Perry-Bey v Trump, e.d., 1:23cv-1165, was filed August 31 by three Black voters who allege that Trump must be removed from the ballot because otherwise they are being denied voting rights on the basis of race or color, and that Trump’s presence on the ballot injures their voting rights. Nothing of substance has happened yet.

West Virginia: Castro v Warner, s.d., 2:23cv-598, was filed September 7. On September 28, Magistrate Omar J. Aboulhosn issued an opinion saying it appears Castro is not harmed by Trump being on the ballot. As in the South Carolina ruling, the Magistrate said there is yet not enough evidence that Castro’s campaign for the Republican nomination would be helped if Trump were off the ballot.

A few states are still changing the dates of their 2024 primaries, or making decisions about whether to have a presidential primary or not.

New Hampshire: still hasn’t set the date of its presidential primaries, but has set the filing period. The deadline will be October 27.

New York: on September 20, Governor Kathy Hochul signed A7690, which moves the presidential primaries to April 2. In 2020 they had been June 23.

Pennsylvania: on September 20, the State Senate passed SB 224, which moves the primaries for all office to March 19. In 2020 they had been on June 2.

California: provisions in AB 421 that would have made it more difficult for initiatives and referenda to get on the ballot were eliminated from the bill. Originally the bill banned paying petitioners on a per-signatures basis, and would have required at least 5% of the valid signatures to have been collected by unpaid volunteers. The final version does neither of those things. Instead it clarifies how referenda appear on the ballot, so that the ballot will say, "Repeal the new law", or "Keep the new law".

Ohio: on September 5, Senator Michele Reynolds (R-Canal Winchester) introduced SB 147, to provide for closed primaries. Many similar bills have failed to pass in the past. Ohio has always had open primaries.

Tyranny of the Minority, by Steven Livitsky and Daniel Ziblatt, published by Crown, September 2023.

This is the very recently released book, written by two Harvard Political Science professors who authored the 2018 book, "How Democracies Die", which made the New York Times bestseller list. It is highly readable and digestible at 258 pages, excluding the 80 pages of notes at the back of the book.

I (Bill Redpath) learned much history reading this book, including an incident at the Capitol of France on February 6, 1934 that was similar to the January 6, 2021 incident at the U.S. Capitol.

I had not previously heard the assertion that the government-printed ballot (a.k.a. "The Australian ballot"), which came into use in the late 19^th century, was meant not only to disenfranchise certain candidates, but also illiterate voters, as it was introduced with the requirement that each person casting a ballot had to do so alone in the voting booth. Selective enforcement of the law then targeted Black voters.

Also I had not heard of the violent coup in Wilmington, N.C., on November 10, 1898, that ended the governance of that city by African-Americans, but those and other historical anecdotes, both foreign and domestic, alone make this book an interesting read.

The thrust of the book is criticism of the democracy of the United States. The authors assert that in the late 18^th century, U.S. democratic institutions were the best in the world. But the U.S. has not adopted reforms that nearly all other advanced democracies have adopted, which has led to our political and judicial institutions being controlled by political minorities.

Example One: The Electoral College. At one time, many presidential democracies elected their presidents through an indirect voting method. Now, the U.S. is the only remaining presidential democracy that does not elect a president directly from the vote of its people, resulting in greater voting power for small state residents in electing a President. The book includes a history of attempts to repeal the Electoral College, which closest to occurring in 1969 and had the support of many Republican politicians.

Example Two: the U.S. Senate, with its malapportionment to the population (only Argentina and Brazil are worse) due to two Senators from each state, and the 60 vote cloture requirement to end debate (which had been 67 votes), is a counter-majoritarian institution. Most established democracies have done away with their upper bodies and are unicameral.

Example Three: the U.S. Spreme Court, whose justices are nominated by a President put in office by the Electoral College and approved by a U.S. Senate, both of which are affected by a bias.

The book also states that the U.S. Constitution is – by far – the most difficult to amend among the world’s established democracies, with only 27 successful amendments out of 11,848 attempts to amend.

It also quotes from the founding fathers on how they were not all-seeing and all-knowing and that future amendments would be necessaryto maintain the relevance of the Constitution.

The Republican Party, in particular, is called out by the authors for having "walked away from democracy", as the book quotes The Economist. An analysis of the anti-democratic positions of 261 Republican members of Congress after January 6, 2021, is particularly damning.

While I don’t agree with certain comments about some issues and organizations mentioned in the book, there are fifteen recommendatiaons in the last chapter, and I agree with the vast majority of them, which include:

#1: abolishing the Electoral College in favor of the National Popular Vote;

#2: rforming the U.S. Senate to make seats more proportional to states’ populations;

#3: replace plurality or "First Past the Post voting with a system of proportional representation;

#4: eliminate partisan gerrymandering;

#5: abolish the Senate filibuster;

#6: establish term limits for Supreme Court Justices (I know of a plan to make them 18 years, so that there is a rotation everytwo years); and

#7: make it easier to amend the Constitution by removing state legislatures’ involvement and require a two-thirds vote of the U.S. Hose and U.S. Senate, which would bring the amendment process more into line with other established democracies around the world and many U.S. states.

While I do not recall anything specifically written about liberalizing U.S. ballot access laws or use or Ranked Choice Voting, given the tenor of the book, I believe the authors would endorse both.

Even though the Nevada legislature passed a presidential primary bill effective 2024, the Republican Party is opposed to the idea and has arranged to keep using a caucus to select delegates to the national convention. The party has plans to hold a caucus on February 8, 2024, to select delegates. Furthermore, any presidential candidate who lists his or her name in the Nevada Republican presidential primary (which is administered by the government) will not be permitted to compete in the caucus. The government-administered primary is set for February 6.

Earlier the Republican Party had filed a lawsuit in state court to cancel the Republican primary, but that lawsuit did not succeed.

On September 23, proponents of a North Dakota initiative filed a federal lawsuit against the state’s ban on out-of-state circulators for initiatives. Hendrix v Howe, 1:23cv-185. The case is assigned to U.S. District Court Judge Daniel Hovland, a Bush Jr. appointee.

The North Dakota ban was upheld by the Eighth Circuit in 2001, in Initiative and Referendum Institute v Jaeger, 241 F.3d 614, but that precedent is considered limited because the plaintiffs didn’t submit evidence showing the burden imposed by the law. Other states in which courts initially upheld out-of-state bans, and then later court decisions struck down the same law, are Arizona, California, Connecticut, Idaho, Kansas, Maine, Montana, Nebraska, New York, Virginia, West Virginia, and Wisconsin.

The group that filed the lawsuit is supporting an initiative to impose age limits on state legislators and members of Congress.

On September 26, the US Supreme Court unanimously rejected Alabama’s appeal to keep its present US House district boundaries in place for the 2024 election (Allen v. Caster, 23A231). The lower three judge court had ordered the legislature to redraw the districts so that there are two Black-majority districts out of the state’s seven congressional districts. The US Supreme Court refused to tamper with the lower court decision, and now the lower court will draw the district lines, with the help of a special master.

This has implications for ballot access in Alabama in 2024. Alabama has some of the most difficult petition requirements for independent candidates other than president in the US. Petitioning can’t start until district boundaries are known. Courts in Alabama have ruled that if the normal petitioning period is cut short, the state must reduce the number of required petition signatures. Alabama normally allows petitioning for independent candidates to start immediately after the previous election, but 2024 US House candidates will have much less time due to the early March 2024 petitioning deadline, so they should be able to obtain a large reduction in required signature numbers.

Also, the fact that Alabama lost the case in the US Supreme Court probably means that Georgia will lose a similar lawsuit and will need to redraw its districts. The pending Georgia case is Pendergrass v. Raffensperger, n.d., 1:21cv-5339. The trial in that case just ended and both sides are about to submit briefs. Any new districts in Georgia probably won’t be in place until after the start of the Georgia petitioning period, so a required signature reduction in Georgia is also possible.

STATE	REQUIREMENTS		SIGNATURES OR REGIS. OBTAINED					Deadline
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	WK FAM	NO LAB.
Ala.	42,353	5,000	0	0	0	0	finished	Aug. 15
Alaska	(reg) 5,000	3,614	already on	*5,181	*already on	0	already on	Aug. 7
Ariz.	34,116	(es) #43,000	already on	*41,600	0	0	already on	Sept. 6
Ark.	10,000	5,000	*12,400	already on	0	0	already on	Aug. 1
Calif.	(reg) (es) 75,000	219,403	already on	already on	156	0	*20,000	Aug. 9
Colo.	10,000	12,000	already on	already on	already on	0	already on	Aug. 7
Conn.	no procedure	#7,500	already on	can’t start	can’t start	can’t start	can’t start	Aug. 7
Del.	(est.) (reg) 760	(est.) 7,600	already on	737	256	*332	*16	Aug. 20
D.C.	no procedure	(est.) #5,200	can’t start	already on	can’t start	can’t start	can’t start	Aug. 7
Florida	0	145,040	already on	already on	already on	0	already on	Sept. 1
Georgia	69,884	#7,500	already on	can’t start	can’t start	can’t start	can’t start	July 9
Hawaii	861	5,745	already on	*400	*0	0	0	Aug. 7
Idaho	17,359	1,000	already on	*0	already on	*0	*0	Aug. 30
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	can’t start	can’t start	June 24
Indiana	no procedure	#36,944	already on	*0	0	0	0	July 1
Iowa	no procedure	#3,500	already on	0	0	0	0	Aug. 16
Kansas	19,890	5,000	already on	0	0	0	finished	Aug. 5
Ky.	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	can’t start	Sept. 6
La.	(reg) 1,000	#pay fee	already on	already on	221	0	0	Aug. 23
Maine	(reg) 5,000	#4,000	(rg) *4,246	already on	0	0	*already on	Aug. 1
Md.	10,000	10,000	already on	*1,500	0	0	0	Aug. 5
Mass.	(est) (reg) 49,000	#10,000	already on	(reg) 3,991	(reg) 330	(reg) 750	0	July 30
Mich.	44,478	30,000	already on	already on	already on	0	0	July 18
Minn.	(est) 130,000	#2,000	0	0	0	0	0	Aug. 20
Miss.	be organized	1,000	already on	already on	already on	0	0	Sept. 6
Mo.	10,000	10,000	already on	*4,000	*1,100	0	0	July 29
Mont.	5,000	#5,000	already on	*already on	0	0	0	Aug. 14
Nebr.	6,605	2,500	already on	0	0	0	0	Aug. 1
Nev.	10,096	10,096	already on	*2,000	already on	0	already on	July 5
N. Hamp.	18,575	#3,000	can’t start	can’t start	can’t start	can’t start	can’t start	Aug. 7
N.J.	no procedure	#800	0	0	0	0	0	July 29
N. M.	3,562	3,562	already on	already on	0	0	0	June 27
N.Y.	no procedure	#45,000	can’t start	can’t start	can’t start	already on	can’t start	May 28
No. Car.	13,757	82,542	already on	already on	*16,200	0	already on	May 18
No. Dak.	7,000	4,000	*3,100	0	0	0	0	Sept. 2
Ohio	40,345	5,000	*750	0	0	0	finished	Aug. 7
Okla.	35,592	pay fee	already on	0	0	0	0	July 15
Oregon	28,576	23,737	already on	already on	already on	already on	already on	Aug. 27
Penn.	no procedure	5,000	can’t start	can’t start	can’t start	can’t start	can’t start	Aug. 1
R.I.	17,884	#1,000	0	0	0	0	0	Sept. 6
So. Car.	10,000	10,000	already on	already on	already on	already on	finished	July 15
So. Dak.	3,502	3,502	already on	*4,000	0	0	already on	Aug. 6
Tenn.	56,083	275	0	0	0	0	0	Aug. 20
Texas	80,778	113,151	already on	already on	*can’t start	can’t start	can’t start	May 19
Utah	2,000	#1,000	already on	0	already on	0	already on	Jan. 6
Vermont	be organized	#1,000	already on	0	0	0	0	Aug. 1
Virginia	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	can’t start	Aug. 23
Wash.	no procedure	#1,000	can’t start	can’t start	can’t start	can’t start	can’t start	July 27
West Va.	no procedure	#7,948	already on	already on	0	0	0	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	can’t start	can’t start	Aug. 6
Wyo.	3,879	3,879	already on	0	already on	0	0	Aug. 27
TOTAL STATES ON			34	17	*12	3	*11	~

#partisan label permitted. "WK FAM" = Working Families. "(reg.) = registered members. "Deadline" column shows the deadline for the latest way to get on the ballot. The Utah entry is not a typo and its deadline is clearly unconstitutional.

On September 8, the Party for Socialism and Liberation announced its national ticket: Claudia De La Cruz for president and Karina Garcia for vice-president. Both live in New York state and both meet the constitutional qualifications. In the past, the party has sometimes nominated under-age candidates for president or vice-president. In 2020 the party got 85,623 votes for president, the most in its history. It has run presidential nominees starting in 2008.

Recently the Colorado Center Party became ballot-qualified, by persuading 1,000 voters to register as members. Colorado now has nine qualified parties, the most in its history. Before 1998, the law required a party to poll 10% for Governor to be qualified. Small qualified parties in Colorado nominate by convention.

On August 1, the Florida Secretary of State revoked the qualified status of the Reform Party, because the party had not filed campaign finance reports. Florida had been the last state in which the Reform Party is still on the ballot. The party can re-file. To do that, it merely submits a list of its officers, its bylaws, and a promise to file campaign finance reports in the future. The Reform Party is recognized as a national committee by the Federal Election Commission. Under a strange Florida law passed in 2011, this means when the Reform Party is a qualified party in Florida it can place its presidential nominee on the ballot with no petition. Qualified Florida parties not recognized by the FEC need a petition of 1% of the registered voters, which is now 145,040 valid signatures. Therefore the Reform Party’s status is quite valuable.

Rasmussen Polls released a general election presidential poll on September 20 that includes Robert F. Kennedy, Jr., as an independent candidate, even though he hasn’t said he will be an independent candidate. It showed him getting 25%.

On September 6, Pennsylvania Governor Josh Shapiro, a Democrat, endorsed Kendra Brooks for Philadelphia City Council-at-large. Brooks is the nominee of the Working Families Party and is running for re-election. The city uses Limited Voting for at-large seats, and no party is able to run a full slate. So, realistically, that seat will either be won by a Republican or a Working Families nominee.

On August 30, No Labels e-mailed its supporters and ask their opinion on how the party should choose a presidential nominee. The choices were: (1) by five to ten highly-respected national leaders of No Labels; (2) by approximately 2,000 delegates who will gather at the Dallas national convention in April 2024; (3) by the registered members of No Labels: (4) by a subset of voters who say they support the party. No Labels has not publicly announced the results of the poll.

On August 25, the Republican National Committee chose Dallas as its 2028 national convention site. No party had ever made such a selection so far in the future.