(Arizona's Law is an independent, non-partisan legal news blog. When we engage in analysis or commentary, we attempt to label it as such. This article may be classified as "news analysis" because it attempts to provide interpretations that add to a reader's understanding of a subject.)
A new election litigation frontier is a near certainty as a result of events over the weekend. Like
last week’s Hints from the Courts news analysis, this article aims to alert
readers to intriguing developments and analyze the Arizona angles.
Since the January 6 insurrection, there has been discussion of Section 3 of the 14th Amendment to the U.S. Constitution, called the Disqualification Clause. On Saturday morning, The Atlantic released a bombshell article co-authored by retired Judge Michael Luttig and Professor Laurence Tribe, two of the most highly regarded constitutional scholars of our time. One is a conservative, the other a liberal. Citing an upcoming law review article (available in preprint) by two other constitutional scholars, William Baude and Michael Stokes, both members of the Federalist Society, the Luttig/Tribe article is entitled:
The Constitution Prohibits Trump From
Ever Being President Again: The only question is whether American citizens
today can uphold that commitment.
This article is not about the
intricacies of their constitutional analysis. Rather, we address the practicality
of the process of whether the former President might be kept off of - or, removed from - ballots in the
elaborate process of working towards November 2024. We will focus on Arizona while noting that Arizona is only one of the 50 states that will be involved in this.
Luttig and Tribe set out the process
in general terms:
“As a practical matter,
the processes of adversary hearing and appeal will be invoked almost
immediately upon the execution and enforcement of Section 3 by a responsible
election officer—or, for that matter, upon the failure to enforce Section 3 as
required. When a secretary of state or other state official charged with the
responsibility of approving the placement of a candidate’s name on an official
ballot either disqualifies Trump from appearing on a ballot or declares him
eligible, that determination will assuredly be challenged in court by someone
with the standing to do so, whether another candidate or an eligible voter in
the relevant jurisdiction. Given the urgent importance of the question, such a
case will inevitably land before the Supreme Court, where it will in turn test
the judiciary’s ability to disentangle constitutional interpretation from
political temptation. (Additionally, with or without court action, the second
sentence of Section 3 contains a protection against abuse of this extraordinary
power by these elections officers: Congress’s ability to remove an egregious
disqualification by a supermajority of each House.)”
Importantly, the
Luttig/Tribe article contends that the Disqualification Clause does not require
any conviction of Trump. It stands on its own.
ARIZONA’S SCHEDULE: Arizona law provides for a
Presidential Preference Election; its deadlines are coming very soon:
11-10-23 A.R.S. 16-242.B Begin candidate registration
for AZ PPE
12-11-23 Deadline for candidate filing for Az PPE
12-14-23 Deadline for SOS to certify candidates for Az
PPE
12-20-23 Mail notice of PPE to active early voters
2-3-24 Mail early UOCAVA ballots (Election starts. This means ballot printing deadlines are a few weeks earlier.)
2-21-24 Begin early voting for PPE
3-19-24 AZ PPE (currently scheduled)
The statutes and our Arizona Election Procedures Manual ("EPM". From 2019, although 2023 will likely be approved and take effect at some point during this process) provide that the PPE is governed as if it is a primary election unless a specific term of law for the PPE conflicts. (E.g., there are no write ins allowed in the PPE, only a person registered in a party can vote in that party’s PPE – meaning no independents and the like.)
The EPM makes clear, as does the
U.S. Constitution, that only candidates who meet the qualifications required by
the Constitution can be on the ballot in the PPE. For example, if a 25
year old filed to be on the ballot in the PPE, would there be a process to remove him or her? And, what would that process be?
Therefore, if Section 3 of the 14th
Amendment disqualifies anyone from being President, there would be no ballot
access for that person. (The Disqualification Clause applies to anyone running for state or
local offices if that person has sworn the constitutional oath at some point.
This discussion, therefore, applies to any local J6 insurrectionists meeting
the 14th Amendment standard; but keep reading for the recent Arizona
Supreme Court decision.)
That means the processes to challenge a
candidate’s qualifications are in play.
ARIZONA’S HISTORY WITH SUCH CHALLENGES: By a Decision Order issued on May 9, 2022, in the Hansen case, the Arizona Supreme Court rejected consideration of a 14th Amendment, Section 3, challenge to the candidacies of three people (Paul Gosar and Andy Biggs at the Congressional level, and Mark Finchem running for Secretary of State) involved in January 6 who filed to run for office in Arizona. The court cited several grounds, including the lack of a federal statute concerning Section 3’s implementation. It is likely that the Supreme Court would stick with that reasoning on any 2024 14th Amendment qualifications challenges absent case law development elsewhere.
(In addition to our coverage of the Arizona Supreme Court's Decision Order, we published the parties' Briefs on the issues.)
Hansen stated that “Congress has not created a civil practice right of action to enforce the Disqualification Clause.” But, the Court did not deal with Section 1983, which the 9th Circuit’s Long case describes: “Title 42 U.S.C. § 1983 provides a cause of action for the ‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ of the United States. To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law.”
Many will argue
that the lack of a specific statute concerning the Disqualification Clause
cannot render it moot. That would be like arguing that if Section 1983 had not been passed, the bedrock principles of due
process and equal protection would be moot. (Such esoteric notions are generally
the province of law reviews; however, in the 2024 cycle they will migrate to the front
pages.)
As a result of the likelihood of
Disqualification Clause challenges occurring throughout the country, we will
outline the general framework of the process issues.
WHO CAN CHALLENGE TRUMP BEING ON THE PPE BALLOT? First, this is not only an Arizona issue. Based on the Luttig/Tribe and Baude/Stokes articles, there will be challenges based on the Disqualification Clause in many states - certainly all the anticipated battle ground states. (Some of you may have noted Maricopa County Recorder Stephen Richer publicized the Baude/Stokes article. Baude is a professor at the law school Richer graduated from)
In Arizona, for decades, as set out in
the fairly recent (2010) Pacion/Bowie Arizona Supreme Court case, “election contests
‘are purely statutory and dependent upon statutory provisions for their
conduct.’" Pacion/Bowie involved the validity of signatures.
The concept of who has standing to sue is certain to come up. As
Luttig/Tribe noted, the election officer can decline to accept Trump’s filing
for the PPE; Trump might then sue. The election officer (in Arizona, that is Secretary of State Adrian Fontes) may ask for either a legal opinion and/or an investigation in anticipation of this situation. A legislator can
also ask the Attorney General for an opinion.
If the election officer accepts
Trump’s filing, a person can challenge Trump’s inclusion on the ballot in a
lawsuit based on the Disqualification Clause. Certainly, another candidate for
the Republican nomination would have standing. Any Republican planning to vote might also have standing, but it is less sure. Arizona courts universally put it
this way, as set out by the Arizona Supreme Court in Bennett v. Napolitano:
This
court has, as a matter of sound judicial policy, required persons seeking
redress in the courts first to establish standing, especially in actions in
which constitutional relief is sought against the government. In Sears, we denied standing to citizens seeking
relief against the governor because they failed to plead and prove palpable
injury personal to themselves. A contrary approach would inevitably open the door to multiple
actions asserting all manner of claims against the government. (citations omitted)
(Bennett went on to hold that
individual legislators cannot presume to represent the opinion or interests of
the entire legislature. In this PPE situation, Republican legislators can
persuasively say they intend to vote in the PPE, therefore, claiming that
status.)
(Another possible sequence of events is discussed below, in the "Go Easy..." section.)
WHEN TO SUE: Qualifications can be challenged at any time a putative candidate takes a step involving the government making a decision. Arguably, that is when a candidate presents the initial paperwork to the SOS. It will certainly be ripe when the person makes one of the types of filings with the SOS claiming to have fulfilled the requirements to be on the PPE ballot. The SOS must certify who will appear on the PPE ballot; that is akin to approving the canvass, a lawsuit is certainly ripe at that point. However, due to some uncertainty as to when the short time to file a lawsuit commences and the accelerated nature of the process - trial court, appeals, etc., anticipate lawsuits will be filed at the earliest moment possible. That will be good lawyering and prudent. Unless Trump does not file for the Arizona PPE, there is almost no additional information needed to prepare the lawsuit and defenses right now.
WHERE TO SUE: There is concurrent jurisdiction in Arizona and federal courts, meaning a case could be filed in either. The Arizona statute allowing a candidate’s qualifications to be challenged speaks to any qualification required by law - that would include the qualifications clause of the 14th Amendment, but due to Hansen, most likely Federal Court under federal question jurisdiction.
It
is certain that good lawyers for both sides will be well-prepared in advance.
The national campaigns for president and other interest groups likely already have
nationally-centered legal teams to handle the multitude of these cases that
will be filed. Local election officials, the same.
GO EASY ON ELECTION OFFICIALS: The Secretary of State's Office is primarily a neutral filing office. In this case, it accepts candidates' filings and instructs the County Recorders to place names "A" through "Z" on the PPE ballot.
But this is a perfect storm scenario for Arizona Secretary of State Adrian Fontes. Hansen was a Decision Order. It is not binding precedent, but is certainly meaningful. Does Fontes reject Trump’s application based on the 14th Amendment? He will be sued and accused of all manner of things? Accept it, and be sued by "Never Trumpers" and accused of all manner of things? Seek a legal opinion from his general counsel or the Arizona Attorney General? He will still get yelled at and sued.
File a declaratory judgment action to have it decided by a judge in advance - allowed when an issue is certain, and it is possible to resolve it before adverse consequences occur? That is not likely unless the Secretary of State's Office gets competing demands for conflicting actions threatening mandamus actions. (That is a special kind of proceeding to force a government official to perform a non-discretionary duty).
You might remember that former Secretary of State Ken Bennett (now, State Senator Bennett) investigated whether Barack Obama was qualified for the 2012 PPE ballot. Bennett conducted that investigation only in response to demands from Republican "birthers" stemming from former Maricopa County Sheriff Joe Arpaio's activities. (And, ironically, Trump's activities and statements.)
Fontes and his staff are in a no-win situation. It can be argued that Fontes or other election officials in other states would be doing Trump a favor by rejecting his application to participate in the PPE as it would allow him to (1) be yet another of Trump's punching bags, and (2) sue and speed it along.
He will be damned if he does, and damned if he does not. (So, it is very possible he errs on the side of maintaining the neutral filing repository purpose of the office.)
TIMING: IMPORTANTLY, AS NOTED ABOVE, THE LUTTIG/ARTICLE CONTENDS THAT THE DISQUALIFICATION CLAUSE DOES NOT REQUIRE ANY CONVICTION (of Trump). RATHER, IT STANDS ON ITS OWN. The federal or state trial court will certainly accelerate all aspects of a case like this. It appears to be a pure legal issue, with the important exception of whether or not January 6 was an “insurrection” in 14th Amendment terms and if any other actions of Trump might meet that definition - the Luttig/Tribe article describes at least one other act of Trump which they feel was an “insurrection.” As always, creative lawyers may attempt to raise other issues.
If in state court for appeal, Rule 10 setting out procedures for accelerated consideration will certainly be used. (For reasons that are unclear, none of the losers in statewide election contests from 2022 have invoked Rule 10).
If it is a federal court appeal to the 9th Circuit, there are accelerated procedures for election cases. (In 2004, an Arizona state court entered a judgment striking Ralph Nader from the ballot for president; no appeal was taken. Nader then filed in U.S. District Court in Phoenix, promptly lost again, appealed to the 9th Circuit which ruled against Nader again in a published opinion, all within weeks. Nader was not on the ballot for president in Arizona in 2004 as a result.)
To sum it up concerning procedures: There almost certainly will be litigation concerning Trump being allowed on the PPE ballot in many other states. In Arizona, there probably will, though Hansen makes it a bit less likely. Due to overlapping deadlines to file such actions in the many states with approaching presidential nominating processes, many will probably be litigated at the same time until one makes it to the U.S. Supreme Court and is resolved. There is nothing Arizona or any election officials can do to head this off. Trump can head it off by dropping out - highly unlikely.
CONCLUSION: Prior to the publication of The Atlantic article by Judge Luttig and Prof. Tribe, we had followed the disqualification clause discussion with some interest as a fascinating topic. With that article, litigation concerning it became a certainty. Litigation that most assuredly will end up in the United States Supreme Court (quickly). An examination of Arizona’s PPE schedule, similarly approaching in many states, demonstrates that such litigation will come soon.
Therefore, buckle up. It may be a wild ride. But, this should not be approached as a partisan political brawl - we have had enough of those. Rather, this will be a fascinating fight over a previously uninterpreted clause in the United States Constitution. Hopefully, all sides will have excellent lawyers who are acting professionally, and with civility.
It will likely take place in several judicial systems, and they will hopefully all get the cases decided in a timely manner. True, for some watching, it will have high stakes due to their partisan bents. For all, it should be interesting to watch such legal battles being handled as they should be.
Yelling. Screaming. Accusing. Name calling. Will not change the results. Maybe, the roar will only be dull. We can only hope.
(COMING SOON: As noted last week, we plan to continue this type of news analysis later this month, on the intersection of attorneys' ethical requirements, sanctions and the First Amendment. We have covered the "Sanctions Scoreboard” and would like to add some context and analysis.)
"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded and published by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet.
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