It would be absolutely outrageous to deprive millions of Wisconsinites of their right to choose Donald Trump if they want. But the state’s Democratic AG isn’t ruling it out
Wisconsin Democratic Attorney General Josh Kaul said on audio late this month that it “remains to be seen” whether former President Donald Trump, who is leading in Republican primary polls, will be allowed on the Wisconsin ballot, appearing to reference a law review article that argues Trump should be denied access to state ballots based on the 14th Amendment.
On August 23, 2023, Wispolitics.com asked Kaul in a podcast whether, if the indictments against Trump “end up sticking,” there is any possibility that Trump “doesn’t end up showing up on certain ballots across the country and maybe Wisconsin. Is that a possibility?”
“That remains to be seen,” Kaul responded. He then noted that there was “an analysis in a law review article” that “made certain arguments about whether Donald Trump is eligible to be on the ballot. I think we will hear more discussion of those topics and potentially legal presentations going forward. It’s too early to say where that will end up.”
For those keeping track, we now have 3 statewide elected officials–Wisconsin, Michigan and New Hampshire–suggesting Trump may already be disqualified from appearing on the ballot in 2024. https://t.co/hXjYAAzQdh
— Dan Lennington (@DanLennington) August 31, 2023
Such an action – denying Wisconsin voters the right to choose Trump by denying him access to Wisconsin’s ballot – would be exceptionally divisive, anti-democratic, and likely to end up before the United States Supreme Court. It also could determine the presidency.
It’s a stunning statement that Wisconsin’s Democratic AG – who once worked for Perkins Coie, Hillary Clinton’s law firm, on election matters – is open to the idea of preventing Wisconsin voters from being able to choose Trump, yet outside the Wispolitics podcast, it’s gotten zero attention from the state’s news media. Despite multiple indictments by Democratic prosecutors and Joe Biden’s administration’s appointee, Trump is ahead by more than 40% for the GOP nomination, according to the Real Clear Politics polling average.
The drumbeat to keep Trump off state ballots started among a group of law professors, including Trump critics and a prominent liberal professor, who are weaving a foundation for ballot access challenges relating to the 14th Amendment. It won’t matter if Trump is kicked off the ballot in blue states. He won’t win them anyway.
The real game will be to kick him off the ballot in a red state (won’t happen) or (and here’s where we come in) a battleground state, of which there are few. Wisconsin, with its divided government, Democratic governor and AG, and deadlocked Wisconsin Election Commission, may become the prime battleground for this effort. Lawyers for the conservative Wisconsin Institute for Law and Liberty raised this concern in a recent article in National Review.
Trump's candidacy may cause a chain reaction of electoral chaos where he is on the ballot some places, excluded in others, & all knotted up in litigation elsewhere. New article @NRO
Below are some of my personal thoughts about how this may play out in a state like Wisconsin🧵/1 https://t.co/HHrAvNBwHD
— Dan Lennington (@DanLennington) August 29, 2023
Wisconsin essentially did exactly this, using different grounds, to third-party nominees for the Green Party and Kanye West in 2020, denying them access to Wisconsin’s ballot, arguably helping Joe Biden win Wisconsin (remember that the Greens’ Jill Stein got more votes in Wisconsin than Trump’s margin of victory against Hillary Clinton in 2016.) The Green Party case went all the way to Wisconsin’s Supreme Court, now liberal-controlled.
In a party line vote on a complete technicality, Democrats on the Wisconsin Election Commission (including two major Joe Biden donors) argued the Green Party VP – Angela Walker – used two addresses on her nomination papers. She said she had simply moved – within the same state. To kick the Greens off the ballot on this hyper triviality, the Democrats on the state Election Commission stated that it wasn’t proven that Walker had actually moved. Republicans said it was obvious she moved.
However, some legal experts we spoke to believe that any effort to keep Trump off the Wisconsin ballot due to the 14th Amendment would have to be brought in federal court because it’s a constitutional question. They don’t believe the state Election Commission would have any authority. The cases of West and the Green Party (and a separate failed challenge to the ballot access rights of Republican gubernatorial candidate Tim Michels) involved state nomination papers, which the Wisconsin Election Commission does have authority over. One legal expert, who did not want to be named because of the contentiousness of the situation, told us they believed WEC “would have no jurisdiction, because it is not an election law claim under Wisconsin law. Plaintiffs could file in a state court, but not WEC. I would still expect the case to be removed to federal court.”
WILL, however, believes the partisan WEC could come into play or even rogue county clerks. What happens when WEC deadlocks is a matter of legal interpretation and dispute.
“A lawsuit alleging that Trump is disqualified could be filed in state or federal court against the relevant election officials,” WILL’s Dan Lennington told WRN. “Multiple lawsuits in multiple states could be a nightmare for Trump, causing him to incur massive attorney fees. While some believe these lawsuits would all be removed to the federal system and decided by the Supreme Court, I think that is far from certain. Existing Supreme Court precedent may stymie Trump’s attempt to immediately remove a state court case to federal court. Whatever happens, all these headaches are in addition to the criminal cases, which may give more fodder for the claim of disqualification. The results could be a historically chaotic election year, with Trump on the ballot in some places and not in others, with inconsistent rules throughout the United States. In short, the disqualification issue is a recipe for disaster on a historic scale.”
The key passage in the 14th Amendment bans former civilian or military officials from holding office if they “shall have engaged in insurrection or rebellion” against the United States government. It was created in the wake of the Civil War to prevent former Confederates from becoming president or controlling Congress.
There are several obvious problems with applying this to Trump:
Was Jan. 6 really an “insurrection” or “rebellion”? Trump and many conservatives would argue no.
What’s the definition of “insurrection” or “rebellion”? Unclear.
Did Trump HIMSELF really engage in those things? He and many conservatives would argue no.
Even Jack Smith didn’t charge Trump with “insurrection.”
Does the 14th Amendment require a conviction?
Doesn’t Trump have free speech rights?
These are serious questions that the conservative-controlled United States Supreme Court will probably have to answer.
Constitutional law expert Kent Greenfield of Boston College Law School told NBC Boston the issue will end up in the courts, saying, “So much of it depends on how we think of Jan. 6. Was it in insurrection? Sedition?”
WILL’s Rick Esenberg and Dan Lennington wrote, “No one really knows just what constitutes ‘insurrection’ or ‘rebellion’ for the purposes of Section 3. Brilliant lawyers disagree.”
Esenberg and Lennington noted, “We are partial to the argument that, to be deemed an insurrection, an action should look more like the Civil War that led to the amendment’s adoption than like false claims, however reprehensible, of a stolen election and specious legal theories that electoral votes need not be accepted. But the question won’t be answered until — and if — the Supreme Court weighs in.”
To be clear: We think it would be outrageous to deprive the American people (remember them?) of the right to vote for Donald Trump if they choose to. We think kicking him off any ballot would be an affront to Democracy and another stage in an extremely disturbing weaponization of the legal system and prosecutorial power to interfere with the 2024 election. We are not endorsing a candidate in the GOP primary, however.
However, if you don’t think the left and some anti-Trump national folks are serious about advancing this claim, just google “14th Amendment” and “Trump” and read the current burst of national media articles on it. Conservative legal scholars, like Michael Luttig, are joining in the chorus with liberal professors like Laurence Tribe to further reinforce the original law review article by William Baude and Michael S. Paulsen.
Luttig, by the way, is an advisor for Trump’s opponent, former Vice President Mike Pence (funny how so many articles leave that completely out). Luttig is a persistent Trump critic, and he has said electing Trump would be dangerous, according to Politico.
In New Hampshire, the secretary of state and attorney general are reviewing a 14th Amendment challenge to Trump’s ballot access there. A Florida lawyer has filed a similar 14th Amendment challenge there.
There is some pushback. The Atlantic ran an article by anti-Trump former Bush speechwriter David Frum in which he argued, “The project to disqualify Trump from running for president is misguided and dangerous. It won’t work. If it somehow could work, it would create problems worse even than Americans already face.”