A Hearing is Required to Keep Trump Off Ballot – NH; Ruling Could Impact Removal Proceeding in Dozen Other States
New Hampshire Is Considering To Ban Trump From The Ballot
WASHINGTON, D.C. (September 22, 2023) – The top election official in New Hampshire has reportedly announced that he would consider banning former President Donald Trump from the ballot because the Constitution requires that Trump first be given a due process hearing.
This ruling is important for at least two reasons, says public interest law professor John Banzhaf of George Washington University, for at least two reasons.
First, New Hampshire traditionally holds the nation’s first presidential primary, and therefore plays a coveted role in the election of presidents.
Second, the decision could set an important precedent for the other dozen or so other states where the same issues are being considered, and, in some cases, already being litigated.
Banzhaf should know because, as the Daily Signal reported: “Documents Reveal New Hampshire Review of Trump’s Ballot Access Came After Outside Legal Analysis – New Hampshire Review on Trump Came After GWU Legal Analysis.”
Banzhaf’s legal filings also led to the criminal investigation of Trump in Georgia, to special prosecutors for Richard Nixon, the scuttling of a so-called “sweetheart” plea deal for Hunter Biden, and the end to abusive prosecutions of police in Baltimore.
Most importantly, because many similar proceedings have been dismissed because the plaintiffs were found to lack legal standing, a federal judge held that Banzhaf had sufficient legal standing to obtain a court order requiring the appointment of an independent counsel to investigate “Debategate.”
Here’s what the Daily Signal explained, based upon almost 1200 pages of documents – including hundreds of previously secret emails – which it obtained from the secretary of state’s office in response to its demand for all documents “regarding deliberations on whether to bar Trump from the state’s primary ballot—and potentially the general election ballot.”
“The top election official in New Hampshire, which traditionally holds the nation’s first presidential primary, announced that he would consider banning former President Donald Trump from the ballot one day after a George Washington University law professor suggested that he call a special panel to make the determination.”
The article continued: “With no conviction on a charge of insurrection, Trump has a right to due process before a state could remove him from the ballot, argued John Banzhaf, a public interest law professor at George Washington University. Banzhaf sent a memo to Scanlan on Aug. 28, with a copy to New Hampshire Attorney General John Formella, also a Republican. The two GOP officials announced the next day they were reviewing the matter.”
The article notes that “many Democrats and liberal groups insisted that a clause in the 14th Amendment disqualifies Trump from being president and pressured election officials like him across the country to act. “
The Section 3 Of ARTICLE XIV
The same view – that Section 3 of ARTICLE XIV is “self executing,” and does not require a hearing or any other proceeding – was also supported by many legal scholars, including conservative ones such as William Baude, Michael Stokes Paulson, and Judge J. Michael Luttig, as well as liberal ones such as Lawrence Tribe.
They has all written that Section 3 of the 14th Amendment – which bars former civilian officials from holding office if they “shall have engaged in insurrection or rebellion” against the United States government – prohibits Trump from running for president again, and therefore from even having his name listed on the ballot.
But, according to the article, “The reason why you cannot lawfully remove his name from the ballot in the absence of an adjudicatory due process hearing is that the Fourteenth Amendment provides that ‘nor shall any State deprive any person of life, liberty, or property, without due process of law,’ Banzhaf’s legal analysis says.”
Finally, the article summed it up this way:
“Banzhaf’s analysis continues: ‘In summary, I would most respectfully suggest that Section 3 [of the 14th Amendment] requires Trump’s disqualification, but only if there is proof, presented in an adjudicatory legal proceeding during which Trump is entitled to due process, which establishes that he did in fact engage in insurrection.’ The day after GWU’s Banzhaf submitted the memo, on Aug. 29, Scanlan and Formella issued a joint press release announcing that both of their offices were ‘carefully’ reviewing the legal question.”
At least a dozen other states are considering whether or not to ban Trump from the ballot, and how to deal with formal legal demands seeking this remedy.
These states include in Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Maine, Michigan, Nevada, New Hampshire, New Jersey, Ohio, North Carolina, and Pennsylvania which also request a fact-finding hearing. The law professor has filed his legal analysis with the governors, attorney generals, and secretaries of state in each jurisdiction.
