Secretary of State Jocelyn Benson kicked up the hornet’s nest last week when she tossed around the idea of keeping former President Donald Trump off the primary ballot due to his various indictments.
The scholarly SOS, a former dean of Wayne State University’s law school, has been talking with other secretaries of state and legal scholars about whether Trump’s ambitions for a second non-consecutive term may run afoul of the U.S. Constitution.
Section 3 of the 14th Amendment in the U.S. Constitution reads that no person shall “hold any office, civil or military” in the country or any state if they’ve “engaged in insurrection or rebellion” against the U.S. Constitution after previously taking an oath to protect it.
Trump’s criminal charges stem from lathering up the Jan. 6 rioters to charge into the U.S. Capitol and send members of Congress running for cover before they could make official the 2020 election results.
Benson said the 14th Amendment does not require a conviction. Trump could stretch his legal cases out past the election, and this language could still trip him up, she said.
“That’s part of what is an ongoing sort of legal question. What is the due process requirement then? (How) do we define ‘insurrection’? Who defines that?” said Benson on a recent “MIRS Monday” podcast “I think the biggest thing to keep in mind is it’s not as cut-and-dried as some legal scholars would suggest.”
In Michigan, the person who determines who makes the presidential primary ballot is the secretary of state. You don’t collect petitions to get on the presidential primary. You don’t turn in a $100 filing fee as if you were running for state representative.
For president, the secretary of state looks at news reports and polling data to see who is formally running and who is making at least a marginal impact in the polls. In years past, there hasn’t been a lot of controversy. In 2008, then-U.S. Sen. Barack Obama asked his name not to appear on the ballot out of protest for Michigan having its primary earlier than allowed under Democratic rules.
However, for a secretary of state to pull someone off the ballot due to her perception that he “engaged in insurrection or rebellion” boils down to a judgment call. Trump may not yet be found guilty in a court of law for insurrection, but ABC News polling last month showed 52% of registered voters agree with the charges he’s facing regarding his actions on Jan. 6.
To this, Benson says, “I would say there are valid legal arguments being made to that effect, but it’s far too soon to really assess the likelihood of that, because a lot of the facts and the evidence and the legal analysis that all of that would have to be rooted in has still yet to be played out,” Benson said.
Republicans, in general, claim Benson is playing politics with the issue. Wayne County 6th Congressional District Republicans asked their local clerks in Plymouth and Canton to “disavow” Benson’s comments.
It’s easy to make the claim that politics is in play. Benson hasn’t ruled out running for governor in 2026, and she’d make a heck of a splash if she ruled that Trump’s flirtation with the violent melee on Jan. 6 makes him ineligible to serve.
However, there is a larger question. Like O.J. Simpson being found guilty in a civil case but not guilty in a criminal case, Trump faces a different standard when it comes to ballot access.
Did Trump take political hyperbole too far? Criminally, the standard for a conviction may be much greater than the standard a state elections official is able to use.
Rest assured, if Benson takes that first step and keeps Trump off the ballot in Michigan, it’ll be up to another court to determine if he stays off.
(Email Kyle Melinn of the Capitol news service MIRS at email@example.com.)
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