Secretaries of state sign legal brief arguing post-Civil War amendment doesn’t apply
BY: TIM CARPENTER Kansas Reflector
TOPEKA — Kansas Secretary of State Scott Schwab said the U.S. Constitution didn’t enable secretaries of state across the country to use their positions to disqualify presidential candidates from inclusion on election ballots.
Schwab, president of the National Association of Secretaries of State, joined Republican peers in nine other states in support of the argument that the U.S. Supreme Court should declare they didn’t possess authority to determine when the 14th Amendment ought to be invoked.
“The court should not give to secretaries of state an inherent power to disqualify candidates from office,” said the legal brief signed by Schwab and others. “It would … introduce serious practical problems that would heighten partisan politics and lead to anti-democratic results.”
A favorable ruling from the nation’s highest court would affirm former President Donald Trump’s assertion the 14th Amendment would be violated if he was forbidden from being included on the 2024 primary ballot in Colorado.
The section of the constitutional amendment related to the case was adopted following the Civil War to prohibit Confederates from serving as U.S. president due to their loyalties during war against the Union. The amendment blocked people from holding office if they took an oath to support the U.S. Constitution and subsequently “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The Colorado Supreme Court on a 4-3 ruling in December disqualified Trump from the ballot by pointing to the former GOP president’s campaign to overturn his loss in the November 2020 election that fueled the Jan. 6, 2021, assault on the U.S. Capitol. The state Supreme Court concluded Trump’s role as an insurrectionist made him ineligible to seek and hold the office of president or to be part of the Colorado primary.
“The insurrection clause addresses a candidate’s moral and political fitness for office on the basis of national loyalty, which makes it different from other constitutional prerequisites for office,” said the brief endorsed by Schwab. “Secretaries of state are ill-positioned to evaluate the complex and sensitive moral question of fitness on the basis of loyalty. This is not a power these state officeholders want, and it is not one the Constitution gives them.”
The “friend of the court” brief touted by Schwab was filed ahead of a Feb. 8 hearing on the issue before the U.S. Supreme Court. The primary election in Colorado is March 5.
In addition, the appeal of a decision by Maine Secretary of State Shenna Bellows to block Trump from the ballot under the same criteria was placed on hold pending outcome in the Colorado case.
Mike Brown, chairman of the Kansas Republican Party, said the state GOP joined 32 other Republican territory and state and parties by filing a separate brief in the Trump ballot case before the U.S. Supreme Court. He said removal of a qualified candidate from ballots would be a disservice to Republicans in 2024 because it would reduce the ability of the target of that ouster to accumulate enough delegates to win the nomination.
“I could not stand idly by and allow this injustice to prevail without a fight,” Brown said.
Meanwhile, Schwab said four Democrats and four Republicans met the filing deadline Friday to be part of Kansas’ March 19 presidential preference primary. Each paid a $10,000 filing fee.
Democrats securing a place on the ballot were President Joe Biden, former Minnesota U.S. Rep. Dean Phillips, Maryland venture capitalist Jason Michael Palmer and Marianne Williamson, the California founder of Project Angel Food. The Republicans were Trump, former United Nations Ambassador Nikki Haley, Florida Gov. Ron DeSantis and Georgia businessman Ryan Binkley.
“I am pleased to have four candidates from each major political party file with our office,” Schwab said. “I encourage Kansans to get out and vote in this historic election.”