Trump lawyer tells Michigan judge only Congress can keep him off presidential ballot

A lawyer for former President Donald Trump went before a Michigan Court of Claims judge Thursday, arguing that neither the judge nor the secretary of state has the authority to keep Trump off the ballot in next year's election despite a constitutional provision some legal experts say bars him from serving as the nation's chief executive.

"We can't have one state dictating who may or may not be president based on their individual disqualification of that candidate," California lawyer Michael Columbo told Judge James Robert Redford in a Grand Rapids courtroom in the initial hearing into a trio of cases regarding whether Trump should or shouldn't be allowed on the ballot.

To do so, Columbo said, would "wreak havoc in a national, federal election."

At issue is whether Trump, in trying to overturn the outcome of the 2020 election of President Joe Biden and urging on a mob that attacked the U.S. Capitol on Jan. 6, 2021, as it met to certify that election, effectively engaged in or aided an insurrection or rebellion against the government. Because, if he did so, there's a legal argument that Section 3 of the 14th Amendment of the U.S. Constitution bars him from serving in federal office having previously taken an oath to support the constitution.

Beyond that question, however, is one being bandied about in several states: Who has the authority to decide whether Trump is qualified to serve a second term he's now running for and, if not, whether he can be kept off both the primary and general election ballot next year.

In one case before Redford, Wayne County activist Robert Davis is asking the court to insist it's Michigan Secretary of State Jocelyn Benson's responsibility to declare Trump ineligible. In a related case, former Michigan Democratic Party Chairman Mark Brewer, acting as lawyer, argued that while Davis is right, the court should declare Trump ineligible. In a third, lawyers for Trump want Redford to rule that neither he, Benson or anyone else in Michigan has any authority to keep him off the ballot under Section 3, saying that responsibility rests solely with Congress.

Benson has already said she doesn't believe she has the authority to keep Trump, the current Republican front-runner, off the ballot — but will follow any decision handed down by a court on the issue.

With the clock ticking toward finalizing the ballot for a proposed Feb. 27, 2024 primary election — a process that will begin as early as Monday — Redford paraphrased the late President John F. Kennedy, saying he was mindful of the question, "If not them, who? If not now, when?"

"I think the who is you," said Assistant Attorney General Heather Meingast, representing Benson's office at the hearing.

That said, Redford — who declined to rule from the bench on the various motions before him — recognized that, while time is of the essence, however he ruled he would not be "the last word on this case," since it would likely end up before the Court of Appeals, which Redford sits with, or the state Supreme Court.

Ultimately, with the issue being raised in several states, it could be settled by the U.S. Supreme Court.

Minnesota decision may not apply in Michigan

On Wednesday, the Minnesota Supreme Court dismissed a claim trying to keep Trump off that state's Republican primary ballot, saying those elections are effectively political party functions and don't necessarily speak as to a candidate's qualifications to serve.

When Trump's lawyer and the judge brought that decision up, however, Brewer — no stranger to Michigan's election law and precedents — noted cases in the state that have made clear that unqualified candidates can and should be stricken from even the primary ballot.

One such case involved Detroit Mayor Mike Duggan, who, in 2013, was barred from the primary ballot for not meeting a residency requirement to file. He ran as a write-in and won anyway.

"Voters," Brewer said, "have a right to have only qualified candidates on the ballot," adding that as much as he'd like to vote for former President Barack Obama again, allowing his name to be on a Democratic primary ballot would be wrong because he's disqualified, having already served the two-term limit.

And while primaries are inherently functions of the political parties, Brewer said that doesn't change the state's responsibilities in administering them, saying a party can always have an internal caucus or a convention if it wants to list a disqualified candidate.

"They have no right to commandeer the state election process and put ineligible candidates on the ballot," he said.

Davis — who raised a separate question about the legitimacy of moving the primary to Feb. 27 next year, saying the state Legislature has already missed its window to do so — similarly argued that Benson has a constitutional duty to determine whether Trump is qualified or not and, if not, bar him from the ballot. His claim was the first brought in Michigan challenging Trump's qualifications to be listed on the ballot.

Using the example of a person who was running who could not meet the constitutional requirement that a president be 35 years of age when he or she takes office, Davis said, "Under the secretary’s interpretation, she would have to accept that person’s name and have it printed on the ballot. Does that make sense?"

Meingast argued that despite the claims to the contrary, state law is clear that the secretary of state will put on the ballot, for a presidential primary, all the candidates who have been mentioned by the national media as running, or are provided by the state parties, absent those candidates who affirmatively ask not to be listed.

When Brewer suggested Benson's own oath of office required her to make a determination of Trump's qualifications, Meingast said supporting the Constitution is not the same as having a direct responsibility to enforce it. "We do not have a vehicle in which to engage in this analysis as to whether a former president should be disqualified," she said.

Columbo, Trump's lawyer, added, "under Michigan law, there is nothing to guide the secretary as to what is insurrection. We can’t have Section 3 meaning different things in different states." But he went even further than that, arguing that Congress has not put in place any mechanism for determining disqualification under Section 3 and that, even if it had, it wouldn't apply to Trump or any other president, since that office isn't specifically enumerated in the section.

He also noted that the presidential oath of office swears to "preserve, protect and defend" the Constitution, not specifically "support" it, as mentioned in Section 3. Redford, however, brushed that away, saying, "It's a distinction without a difference."

Redford and Brewer also noted that, despite Columbo's contention, at no place does Section 3 say Congress decides the qualification question, only that it can, by a two-thirds vote, "remove such disability." And Brewer pointedly noted that far from having no authority over the presidential election, states have far-reaching considerations. The Constitution gives states authority, for instance in the choosing of presidential electors who ultimately decide the presidency.

Late in the hearing, it was pointed out to Redford that Trump had not signed a verification of his request that the court issue a ruling saying it was outside the secretary of state's scope to disqualify him and that he could not be barred from the ballot. Redford gave Trump's lawyers until Friday at noon to file an amended complaint with the verification.

Contact Todd Spangler: tspangler@freepress.com. Follow him on Twitter@tsspangler.

This article originally appeared on Detroit Free Press: Lawyers spar in Michigan over who can bar Donald Trump from ballot