The Michigan Court of Appeals will soon decide whether former President Donald Trump will remain eligible for Michigan’s 2024 ballot – though even the presiding judge on the issue noted it is unlikely he will have the last word on the subject.
“The court will act with all possible deliberate speed to figure out what should happen next, and then that will be taken and manifested in a written opinion,” Michigan Court of Appeals Judge James Redford said Thursday, Nov. 9.
Questions of whether Trump belongs on the ballot are the focus of three cases before Redford, who will issue three separate decisions. Robert Davis v. Jocelyn Benson and Robert Labrant v. Jocelyn Benson, center on keeping Trump from the ballot due to his involvement with the Jan. 6, 2021, attack on the United States Capitol. The third case, Donald J Trump v. Jocelyn Benson, seeks to show Michigan Secretary of State Jocelyn Benson does not have the authority to remove the former president as an option for voters come 2024.
The first two cases argue Benson should exclude Trump from the Michigan ballots for myriad reasons, chief among them that he violated the 14th Amendment’s third section, a Civil War-era addition that bars individuals from running for “any office, civil or military, under the United States” if they have previously “engaged in insurrection or rebellion.”
“We are now determining the eligibility for the presidential primary and the clock is ticking,” said Mark Brewer, an attorney arguing on behalf of the Labrant case. “We believe Trump is disqualified under section three. That doesn’t mean, even if doesn’t appear on the Michigan ballot in February, that he could not have the disqualification lifted and appear on the general election ballot.”
Brewer and serial litigator Robert Davis argued separately Thursday morning as to why Trump should be kept from the ballot, pointing to various case law they believe gave Benson the power to drop the candidate from Michigan’s ballots. In Davis’ case, he sought to tackle the question of who has the authority to remove a candidate from the ballot via declaration.
Benson has previously maintained she, in her role, does not. Assistant Attorney General Heather Meingast reiterated this before the court.
She said while the department could review affidavits of identity filed by candidates for state legislature or to fill a congressional seat in Michigan, no such ability existed regarding a presidential candidate.
“The law simply doesn’t allow the secretary, or provide the secretary, with any authority to investigate or delve into the qualifications – or lack of qualifications – of a presidential primary candidate,” Meingast said, adding that with the primary fast approaching a finalized list of 2024 candidates was expected sometime next week.
Upon Redford asking who, if not the secretary of state, would be responsible for removing a presidential candidate from the Michigan ballot, Meingast replied: “I think it’s you. … We have no process for conducting any kind of inquiry or investigation into something like this.”
Michael Columbo, representing the Trump campaign, additionally argued the 14th Amendment could only be executed by Congress and that a state legislature – let along a secretary of state, acknowledging Benson’s agreement on the matter – would be unable to move the clause into action.
Further, he said if a state were allowed to strike Trump from the ballot, it would “wreak havoc in a national federal election.”
“When you’re talking about a presidential candidate, we cannot have a patchwork of 50 states and the District of Columbia with different standards that apply … The Constitution sets the qualifications for office. It cannot be cannot be different state to state. This is fundamentally and quintessentially a federal function,” Columbo said.
He, alongside other attorneys representing Trump, were meant to additionally argue Trump v. Benson on Thursday before Redford as well. But they had not properly verified their case ahead of the hearing. They will be given the chance to resubmit the case, which argued Benson must be stopped from even trying to consider removing Trump from the ballot, before noon Friday, Nov. 10.
What ever ruling comes out of the court, Redford noted it would likely be escalated up to the Michigan Supreme Court.
“I fully recognize I am not the last word on whatever happens in this case,” he said. “Maybe. But I think it’d be the first time I’m ever the last word on anything of this substance.”
A final decision would need to come soon, however, given Michigan lawmakers approved a motion to adjourn for the rest of the legislative year come Tuesday, Nov. 14. That adjournment means the state will easily meet the 90-day waiting requirement needed for a bill to move Michigan’s presidential primary to Tuesday, Feb. 27, to properly become law.
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