By E. Thomas Sullivan & Stephen C. Terry
Editor’s note: E. Thomas Sullivan is resident emeritus and professor of law and political science at University of Vermont where he writes and teaches in constitutional law and history. He is also a former Provost, Dean of the Law School, and Professor of Law at the University of Minnesota. Stephen C. Terry Is a political analyst, former Managing Editor of the Rutland Herald, and author of Vermont political history.
In the country’s 234 years, no American current or former president has been indicted on either the federal or state level. On Aug. 1, 2023, a federal grand jury indicted Donald Trump. Currently, he has been indicted by four grand juries, two federal and two on the state level.
The federal Aug. 1 indictment charged Trump with efforts to subvert the 2020 election process and results. The charges included a conspiracy to obstruct an official government proceeding including Congress’s duty to certify the election vote on Jan. 6, a scheme to defraud the United States by impeding the collection and counting of the 2020 election results, and a scheme to deprive citizens of the right to vote and have the votes counted.
He also has been indicted along with 18 others under the Georgia’s Racketeer Influenced and Corrupt Organizations Act (RICO law) in a conspiracy and coordinated effort with others to stop the proper certification of the state’s 2020 Presidential election.
Federal elections are governed by Article 1, Section 4, clause 1 of the United States Constitution, which gives the state legislatures the authority to set rules for federal elections. The Vermont legislature under current state law (17 VSA, Section 2702) has given the Secretary of State such authority to include any candidate on the March presidential primary ballot who files, as a precondition, 1,000 valid petitions by Dec. 15, 2023, as well as having paid a $2,000 filing fee. If these conditions are met, the authority is vested without discretion to the Secretary of State to include the name on the ballot.
Both the Secretary of State and the Vermont Legislature are required to take an oath of office and swear to uphold the United States Constitution and its Supremacy clause (Article 6, Section 2), which declares that all federal laws are the “supreme law of the land” and override any conflicting state laws.
It is our opinion that in Vermont this means the Secretary of State, Sarah Copeland Hanzas, could invoke the 14th Amendment of the United States Constitution to keep Donald Trump off the 2024 ballot.
Here’s why:
Section 3 of the 14th Amendment says that no person can hold public office who has taken an oath to support the United States Constitution and who has engaged in insurrection or rebellion against the government or has given aid or comfort to the enemies of the government.
Trump has been charged in federal and state courts with trying to overthrow the will of the voters in the 2020 national election. Some prominent conservative constitutional scholars recently wrote a lengthy article making a compelling case that Section 3 has not been fully appreciated or enforced. The scholars wrote that the section is “self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress” or by the federal courts. The article maintains that Trump can be barred from ever holding public office again because of his conduct during the January 6 riots on Capitol Hill.
When the federal and Georgia indictments are read together, along with the extensive report issued in December of 2022 by the House of Representatives Select Committee on the Jan. 6 attack on the U.S. Capitol, the evidence seems clear that the 14th amendment is triggered and applicable to bar Donald Trump from holding public office again.
But what about the Vermont election law outlined above?
We would argue that the Supremacy clause of the United States Constitution would overrule the Vermont law.
Meanwhile, in New Hampshire, the first–in–the-nation presidential primary, there are two current efforts underway to keep Trump off the Granite State ballot. One is a lawsuit filed by a little-known Republican Presidential candidate, John Anthony Castro of Texas, arguing that Trump is not eligible to hold public office again. This lawsuit sets up a potential judicial review of Section 3 that would likely end up being decided by the United States Supreme Court.
Simultaneously, New Hampshire Secretary of State David Scanlon is asking the state’s Attorney General John Formella to review the legal issues of the 14th amendment Section 3 provision. Such a review would provide guidance to Vermonters and help others before they vote in their states’ primaries.
We propose Secretary Hanzas and Vermont Attorney General Charity Clark conduct their own review and report their results to the Vermont public well before the Dec. 15, 2023 filing deadline. They might contemplate holding a public Vermont forum with invited constitutional scholars, political leaders and Vermonters to fully explore this critical, pivotal issue. Should she decide to keep Trump off the Vermont March ballot, she certainly would be challenged in court by Trump or one of his potential voters. Such a suit would be timely for this important question to be finally resolved before the national elections in November 2024.
Her decision would give Vermonters an opportunity to raise this important question of whether Trump’s behavior should be allowed to permit him to be on the ballot under a fair and cogent reading and enforcement of the Constitution. Under the same circumstances, this would apply to any other candidate, Democrats included, if the facts supported it.
The Constitution provides Vermont and the nation a path forward.
