As some seek to disqualify Donald Trump from the ballot, Vermont … – VTDigger
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As politicians, constitutional scholars and litigants throughout the country explore a potential legal strategy to disqualify Donald Trump from the 2024 presidential ballot, Vermont’s top elections official is adopting a wait-and-see posture.
Though state leaders have determined that Secretary of State Sarah Copeland Hanzas doesn’t have the authority to bar the former president from the ballot, they’re bracing for the possibility that a lawsuit could put their conclusion to the test.
“I think it’s important for us to take a step back from the heat or intensity of everything surrounding the former president and just say: This country is founded on the rule of law, and we have processes in place that say, when there’s a question, that those questions go before the judiciary,” Copeland Hanzas, a Democrat, told VTDigger this week.
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Trump is the only former president to have been indicted on criminal charges after leaving office, and he has been four times over this year. Some legal scholars argue that two cases against him in particular — for his actions leading up to the Jan. 6, 2021 assault on the U.S. Capitol, and for alleged election meddling in Georgia — should constitutionally bar him from holding the office of president.
They point to the 14th Amendment, which was adopted in the wake of the Civil War. Section 3 of the amendment states that no one shall hold a civil or military office “who, having previously taken an oath… as an officer of the United States, 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.”
The strategy has been building momentum since two professors, William Baude of the University of Chicago Law School and Michael Stokes Paulsen of the University of St. Thomas School of Law, laid out the theory in a widely covered article set to be published next year in The University of Pennsylvania Law Review. Both men are members of the conservative legal group the Federalist Society and consider themselves to be constitutional originalists.
Baude tightly summarized his and Paulsen’s conclusion to the New York Times in August: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”
Their argument has been echoed closer to home, including in an op-ed by Tom Sullivan, a constitutional law professor and former president of the University of Vermont, and Steve Terry, a former journalist and political aide. They implored Copeland Hanzas to explore disqualifying Trump from the ballot.
Calling it a “major constitutional issue,” Terry said in an interview, “I think we are at a time in our country where the future of our democracy is so much in peril now, that this probably calls for some unusual and courageous steps.”
But among top officials in Vermont — which voted for President Joe Biden over Trump by a 35-point margin in 2020 — the argument does not appear to be gaining traction.
Attorney General Charity Clark, a Democrat, told VTDigger on Friday that she and Copeland Hanzas “have been in regular communication about this topic.” Their offices have jointly concluded that, according to Vermont state elections statute, Copeland Hanzas in her capacity as secretary of state does not have the authority to disqualify candidates from the ballot, except if the candidate failed to garner the required petition signatures to qualify.
In neighboring New Hampshire — whose primary is a high-stakes, hotly anticipated test early in every presidential election cycle — Republican Secretary of State David Scanlan came to a similar conclusion, pointing to that state’s similarly written elections law. “That language is not discretionary,” Scanlan told reporters Wednesday.
“We are all sort of scratching our heads at this theoretical statement that secretaries can and should and must bar the former president from appearing on the ballot,” Copeland Hanzas told VTDigger on Wednesday. “In reality, our statutes don’t contemplate a step in the process where the secretary has either the right or the obligation to vet the qualifications of someone who runs for president.”
“Our statute is pretty clear that if someone comes with the requisite number of signatures and the consent of candidate form, that person shall appear on the ballot,” Copeland Hanzas added.
Just because she’s not planning to strike Trump’s name from the ballot doesn’t mean that Copeland Hanzas doesn’t think the question could come to a head in Vermont.
Already, lawsuits have been filed in Colorado, Minnesota and New Mexico by individuals and interest groups seeking to force the issue.
On Wednesday, Copeland Hanzas seemed resigned to the possibility of being taken to court over the issue — and, in fact, downright welcomed it.
“From my standpoint, the only way to have clarity would be for there to be a court decision on this,” she said. “I’m just one individual who happens to be sitting in the office of secretary of state while everybody in the country is wondering about this question of, ‘Is he eligible?’ So yeah, I’m wondering, too.”
If Copeland Hanzas is on the receiving end of such a lawsuit, the attorney general’s office would represent her.
Clark, who said her office is “closely monitoring” the lawsuits now materializing across the country, kept her comments on the merits of the legal argument brief.
“This is an intriguing and untested legal theory,” she told VTDigger.
As state officials prepare for the possibility of legal action, they’re also busy fielding questions from interested Vermonters.
Copeland Hanzas told VTDigger that she has been receiving so many constituent emails on the matter that her office has crafted a boilerplate response, reiterating Vermont election law.
Within the legislative branch, there have been rumblings, as well. When state lawmakers reconvene in January, they could pursue amending Vermont’s elections laws, though both House and Senate leadership told VTDigger on Friday that there are no current plans to do so.
Rep. Mike McCarthy, D-St. Albans, who chairs the House Government Operations Committee, said Thursday that he had received enough inquiries from his colleagues on the matter that he drafted an email to make his stance known. “It’s not the state Legislature’s job to interpret the U.S. Constitution,” he told VTDigger after the fact.
“It is my political opinion that this is not a wise path to support,” McCarthy said. “People have their right to try to have this clarified in court and figure out what the standard is, but I don’t think that it’s in the power of the state Legislature to act on this in statute.”
In an email to members of the Vermont Republican Party this week, state GOP chair Paul Dame criticized efforts to bar Trump from the ballot and argued that it’s up to federal, not state, officials to determine whether the former president qualifies.
The plain language of the 14th Amendment, Dame wrote, “strongly suggests that it is the role of the U.S. Congress and U.S. Senate to determine the qualifications of federal office holders, and not the role of individual state election officials.”
When asked about the matter at his weekly press conference on Wednesday, Gov. Phil Scott — a Republican who made national headlines in 2020 for voting for Biden over Trump — also advocated for pumping the brakes.
“Obviously, I’m not a supporter of former President Trump,” Scott told reporters. “But at the same time, I want to make sure that we continue to be a democracy that respects the rule of law. And he is accused, but he hasn’t been tried and adjudicated.”
Even some of Trump’s most ardent opponents are steering clear of the 14th Amendment argument, noting that the former president has already claimed that the 2020 election was stolen from him. Would striking his name from the ballot only give his claims of victimhood more oxygen?
“One of the things that makes me afraid of people that I’m politically aligned with, Democrats… chasing after this, celebrating it, wanting it to be enforced in this case, is that it distracts us politically from the work of persuading our fellow citizens that we don’t want our government to be taken over by people who disrespect the Constitution and lie,” McCarthy said.
Asked earlier this month if the Vermont Democratic Party had any plans to pursue the 14th Amendment strategy in court, the party’s executive director Jim Dandeneau answered no.
“The way to beat Trumpism and MAGA Republicans, in our minds, is to beat them at the ballot box and beat them in the community,” Dandeneau said. “I don’t think that there’s any legal trick that is going to solve this problem long-term the way that organizing will.”
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VTDigger's political reporter. More by Sarah Mearhoff