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I filed a complaint to disqualify Trump from the ballot and so should you!
Copy and paste email I drafted at end of this article
In recent days, there has been a great deal of talk in the media about whether Section 3 of the 14th Amendment bars Donald Trump from the ballot given his role in the Jan 6 insurrection.
That constitutional Amendment—enacted after the Civil War—was prompted after Southern States had outrageously sent to Congress to serve as U.S. Senators and Representatives men who had violated previously sworn oaths to support the U.S. Constitution by engaging in or supporting the Confederacy against the United States. These people seeking to serve in Congress included, “four Confederate generals, four colonels, several Confederate congressmen and members of Confederate state legislatures, and even the vice president of the Confederacy, Alexander Stephens.”
In other words, people who tried to destroy the United States of America from the outside, were now being sent to attempt to do the same from the inside.
Thus, was born Section 3 of the 14th Amendment that provides: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Last week, two prominent conservative scholars, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St Thomas, made a compelling case that Trump is disqualified from holding office in article published in the University of Pennsylvania Law Review. And just a few days ago, conservative former federal court of appeals judge J. Michael Luttig and famed Harvard Law constitutional professor Laurence Tribe penned an article for The Atlantic titled, “The Constitution Prohibits Trump From Ever Being President Again.” These two distinguished jurists reached the same conclusion that Trump had “engaged in insurrection” and is barred from ever serving in federal office again by way of the US Constitution.
In my view, they are correct. But the only way to reach a definitive answer is if a secretary of state or state election board first rules on the issue. If they do bar Trump, it will be appealed by Trump and it will likely go all the way to the United States Supreme Court. That is the ultimately the tribunal that needs to render a decision on this all important issue. But the process must start now.
This is where you and I come in. No, we don’t have to file a lawsuit or argue a case in the Supreme Court. But we must email complaints to the Secretary of State and/or the state election board where you live demanding that they either disqualify Trump based on this constitutional disqualified, or better yet, hold a hearing/trial to determine if Trump violated Section 3 of the 14th Amendment.
You don’t need to be a lawyer to send such an email. All you need to be is a patriotic American who believes in our Constitution.
To make things easier, I have drafted a short email posted at the end of this article that you can use as a guide. You simply need to look up the state election officials in your state to obtain the correct email address and send it.
For those wondering if Trump’s criminal cases first need to be concluded before a decision is made on banning him from the ballot, the answer is definitely no. As the non-partisan Congressional Research Service notes—there “does not expressly require a criminal conviction, and historically, one was not necessary”—based on the cases after the Amendment was enacted.
That was also the ruling of a New Mexico court in 2022 considering this section of the Constitution that I will explain in more detail below. Thus, there is no need Trump be convicted of or even charged with inciting an insurrection—or any other crime--under federal law as a prerequisite to finding him violated the US Constitution.
Vitally important for those who support banning Trump from the ballot is that 2022 New Mexico court ruling that decided—after a trial—to remove from office, Otero County Commissioner Couy Griffin and bar him from seeking office again for his violation of Section 3 of the 14th Amendment.
Before the court ruled on whether Griffin—the head of Cowboys for Trump—was disqualified from holding office, a trial was held where expert testimony was heard about whether Jan 6 was an “insurrection” as contemplated by the 14th Amendment. Mark Graber, a professor at the University of Maryland Law School who has taught American political and constitutional history for 30 years, testified about what the framers of the 14th Amendment would deem an ”insurrection.” Based on his expert testimony together with past court decisions, the judge found that the term “insurrection,” as “understood by knowledgeable nineteenth-century Americans and Section Three’s framers, referred to an (1) assemblage of persons, (2) acting to prevent the execution of one or more federal laws, (3) for a public purpose, (4) through the use of violence, force, or intimidation by numbers.”
This powerful passage from the judge’s ruling on that Jan 6 attacks is bone-chilling: “The mob ultimately achieved what even the Confederates never did during the Civil War: They breached the Capitol building and seized the Capitol grounds, forcing the Vice President and Congress to halt their constitutional duties and flee to more secure locations.”
Looking at these facts and applying the legal standard, the judge concluded that the Jan 6 attack was an “insurrection” within the meaning of Section 3 of the 14th Amendment.
The Judge then looked at whether Griffin had “engaged” in this insurrection as defined by the 14th Amendment. Citing past case law and the testimony of the historian/law professor, the judge explained that, “Nineteenth-century Americans understood that a person ‘engaged in’ insurrection whenever they were “leagued” with insurrectionists.” This was evidenced “either by acting in concert with others knowing that the group intended to achieve its purpose in part by violence, force, or intimidation by numbers or by performing an “overt act” knowing that act would “aid or support” the insurrection.”
The judge explained instructively that based on past case law: “One need not personally commit acts of violence to “engag[e] in” insurrection,” adding instructively, “Engagement thus can include non-violent overt acts or words in furtherance of the insurrection.”
The judge then found that Griffin had “engaged” in an insurrection by his mobilizing people to attend the Jan. 6 rally with a combination of election lies and inflammatory rhetoric, marching into the restricted area surrounding the Capitol on Jan. 6 and during the attack vocally supporting the mob breaching the Capitol. (Griffin’s appeal to the New Mexico Supreme Court was rejected for a second time earlier this year.)
While a New Mexico court decision is not controlling in other states, the detailed findings and compelling reasoning is very persuasive. In fact, this court decision should be sent to the Secretary of State and/or state election offices—as I have included in my model email below.
Obviously, Trump did far, far more than Griffin. He was the reason for the Jan 6 insurrection. If Trump had simply accepted he had lost the election, there would not have been no Jan 6 insurrection.
Instead, Trump mobilized people to gather that day for what he promised would be a “wild” event. He also told lies that incited the crowd, and directed his supporters who were chanting “Fight for Trump” to “walk down to the Capitol” and “Stop the Steal.” He also pushed them to take action with lines like, “We're stuck with a president who lost the election by a lot and we have to live with that for four more years,” adding, “We're just not going to let that happen.”
In addition, during the Jan 6 attack, Trump tweeted—after he knew the Capitol had been breached—an attack on his then Vice President, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution." As Trump knew would happen, his supporters then surged in attacking the Capitol—a point established by the Jan 6 House hearings. This goes far beyond Griffin simply yelling support for the attackers on Jan 6 as they breached the Capitol.
It is clear from the New Mexico case and other recent ones—such as the one brought against Rep. Marjorie Taylor Greene-- that voters in each state have standing to file a lawsuit to do that. And for those so compelled, please do just that. But my hope is all others will send an email to their respective Secretary of State and/or state Election board demanding they at least hold a hearing on the issue.
Barring Trump from the ballot based on the 14th Amendment is not anti-democratic, it’s about upholding the United States Constitution. It’s that simple.
Trump belongs in a prison cell, not on the ballot. I shudder to think of the damage Trump will do to our nation between now and November 2024 if he remains on the ballot. Please take a moment to email your state election officials so that we can have this issue brought to a head now—not when it’s too late.
*****Here is a form email you can copy and paste to send to your state’s secretary of state and/or election board:
Dear [fill in name of your Secretary of state or Election board]
I’m writing to your offices urging a formal review of whether Donald Trump is barred from the ballot in this state by way of Section 3 of the 14th Amendment. That Amendment disqualifies from the ballot any person who “shall have engaged” in an “insurrection.” For such a disqualification, there is no requirement that Trump or any person be first convicted of any crime—as the Congressional Research Service notes.
In addition, last year after a trial in New Mexico, a judge ruled that Jan 6 was an “insurrection” within the meaning of the 14th Amendment and that Otero County Commissioner Couy Griffin was removed from office and disqualified from the ballot for “engaging” in that attack. Donald Trump’s actions-- as detailed in the final report of the “Select Committee to Investigate the January 6th Attack”—far exceed the actions of Griffin in terms of “engaging” in the Jan 6 insurrection. While that New Mexico ruling is not binding in this state, it is persuasive in its reasoning and I urge your offices to read it.
As the US Constitution mandates, no one should be permitted to be on the ballot who has engaged in an insurrection. The time to review if Trump has done just that and is barred from the ballot is now—well before the 2024 election.
Thank you for considering this issue that is vitally important to protecting our Republic.
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