Legal Demand to Remove Trump From Ballot Filed in NH

Trump Removal Demand Proposes Public Hearings on Both Evidence and Procedure
WASHINGTON - Aug. 31, 2023 - PRLog -- A formal legal demand has been filed seeking to keep former president Donald Trump off the primary ballot in New Hampshire pursuant to ARTICLE XIV, Section 3, of the U.S. Constitution.

Unlike a growing number of legal scholars who have argued that no further hearings or other steps are required, and also unlike those who support Trump by arguing that his name cannot be removed from the ballot because he has never been convicted of insurrection, this legal petition takes a middle ground based upon another portion of the 14th Amendment.

The same article of the Constitution [ARTICLE XIV] which mandates removal for those who engaged in insurrection also provides that "nor shall any State deprive any person of life, liberty, or property, without due process of law."

Since under virtually any modern interpretation of this constitutional provision, prohibiting someone from running for office would be to deprive him of "liberty" and/or "property," such a determination would require an adjudicative due process hearing, notes public interest law professor John Banzhaf who has taught the law requiring hearings for over 40 years.

Thus, since the Constitution requires that state officials remove Trump's name from the ballot if he in fact engaged in insurrection, but also that they must first hold a due process hearing, Banzhaf's legal complaint demands that New Hampshire either promptly hold a due process hearing to weigh the evidence against Trump, or simply rule that his name cannot appear on ballots so that he can then promptly get his due process determination in a trial when he appeals that decision to the courts.

To help resolve various legal issues - e.g. what procedural protections would the Trump due process hearing require, what is the standard of proof needed to disqualify Trump under Section 3, etc. - Banzhaf suggests that Secretary of State David Scanlan first hold a non-adjudicative congressional-type hearing during which all interested persons can make offers (tenders) of proof and legal arguments to help formulate the best procedure.

He also warns Scanlan that "denying this Formal Legal Petition without at least holding such a non-adjudicative rulemaking-type hearing - presumably based upon your own inclinations and/or any advice you might receive from other state employees or advisors - would almost certainly give rise to suspicion of unfairness if not bias, and complaints that you did not fully consider the views of all interested persons, failed to take note of key legal and policy arguments, apparently were not aware of key evidence, acted arbitrarily and capriciously, etc."

(202) 994-7229 // (703) 527-8418   @profbanzhaf

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