Dems’ plan to strip Trump from NY ballot has number of flaws under state law

The New York State Board of Elections is anticipated to decide whether Donald Trump will appear on the April 2 primary ballot for president, but the battle to remove the former president through the board is rife with hurdles Democrats may not even realize, a state elections expert says.

“The Board of Elections is a ministerial body. So, they wouldn’t even have the power to judge qualifications such as 14th Amendment Section 3 or, for instance, if a candidate files a fraudulent petition. The board doesn’t even have the adjudicatory power to make that determination, it would really have to be done in court,” New York Republican election attorney Joseph Burns told.

The New York State Board of Elections is expected to decide on Feb. 6 whether Trump can appear on the ballot after Democrats in the New York City Council and state legislature asked the board to remove Trump, arguing he sparked an insurrection on Jan. 6, 2021, when supporters breached the U.S. Capitol.

The State Board’s Republican co-executive director, Raymond J. Riley III, issued a statement Monday that the “the presidential primary filing period is ongoing” and that a “meeting is scheduled for February 6th where the Republican Commissioners will make a determination on ballot access.”

Democrats in a handful of states across the U.S. are in the midst of legal battles to remove Trump’s name from state ballots, saying Trump’s actions on Jan. 6, 2021, violated a clause in the 14th Amendment that prevents anyone who “engaged in insurrection or rebellion” against the Constitution from holding political office.

In New York, however, Burns said Democrats have an even steeper uphill battle to argue that Trump shouldn’t be on the ballot – before they even hash out the 14th Amendment violation argument.

Burns said there are three ways that candidates for president can get on the primary ballot under the Republican plan in New York, including: candidates showing they are eligible to receive presidential primary matching fund payments; filing a designating petition of signatures of 5,000, or 5%, of enrolled Republican voters in the state; or by claiming a candidate is a nationally known and recognized individual.

“Obviously, it’s much simpler just to say, ‘I’m a nationally known candidate,’ especially if you’re a former president who is leading in the polls,” Burns said.

“But when the commissioners make that determination of whether Trump – or anybody – is a nationally known candidate, that’s really all they’re going to be looking at. … It’s not part of the requirement to go and judge their qualifications, whether it’s with the 14th Amendment or anything else,” Burns said.

Burns said that under New York Republican presidential primary election laws, the issue of a presidential candidate claiming they are entitled to appear on a primary ballot due to being nationally known rests solely with Republican commissioners on the board.

“​​I don’t think they realize that the decision to keep Trump on the ballot is actually solely with the two Republican commissioners on the State Board of Elections. That’s how the law was written. So, the Democratic commissioners wouldn’t have any say in that,” Burns said.

The law states: “Notwithstanding any inconsistent provision of law to the contrary, a request by a candidate to appear on the presidential primary ballot of a major political party shall be determined solely upon a joint recommendation by the commissioners of the state board of elections who have been appointed on the recommendation of such political party or the legislative leaders of such political party, and no other commissioner of the state board of elections shall participate in such determination.”

Burns said this breaks from how the evenly split board of elections typically operates, as both Republican and Democrat commissioners usually must agree to move forward with a proposal or agenda.

He said that instead of taking the issue to the New York State Board of Elections to remove Trump, Democrats would have to go to the courts.

“It would have to be done in court where you could actually present evidence, present the case. Now, to get into court, it’s limited who would even have standing in state court,” he said.

Burns said it was “quite amusing” to watch letters from Democrat lawmakers to the board of elections calling for Trump’s removal because he does not believe the Democrats have standing to file objections or a lawsuit to remove Trump.

“For the most part, standing is limited to individuals who filed objections for opposing candidates. I find it hard to believe that any of Trump’s rivals would go to court to have him removed from the ballot. And any potential objector would have to be a party member,” he said.

The executive director of the New York Republican State Committee, Jason Weingartner, told the Gothamist outlet this week that Democrats would need to take the issue to the courts because the board of elections if “not a court of law.”

“They’re not a court of law,” he said. “They are not in a position to determine whether or not someone was an insurrectionist. You need to have that done in a court of law with a finding of fact. And they are just not that.”

N.Y. GOP spokesperson David Laska added in a comment that “no one is fooled” by the Democrats’ plan to remove Trump.

“The same Democrats who clutch their pearls about the supposed end of democracy are now trying to remove from the ballot members of the opposition party rather than let the voters decide. No one is fooled,” Laska said.

Ahead of this year’s election, other states are in the midst of legal battles over whether to remove Trump’s name from the ballot, most notably in Colorado. The Colorado Supreme Court ruled to bar Trump from the ballot last month, with justices writing in their opinion that Trump “incited and encouraged” the use of violence to prevent the peaceful transfer of power on Jan. 6, 2021, in the wake of the 2020 presidential election.

Trump last week asked the U.S. Supreme Court to overturn the Colorado Supreme Court’s ruling, arguing that the “Colorado Supreme Court has no authority to deny” him a place on the state’s ballot. The high court will hear the case next month.

Maine has also barred Trump from the ballot, which the former president is appealing in state court, and efforts are underway in other states such as Illinois, Oregon and Massachusetts to remove Trump’s name.

Burns said the issue in New York may be done and dusted upon the Supreme Court’s decision on the Colorado case.

“With the Supreme Court hearing arguments in early February, it’s certainly quite possible that this all gets resolved before anybody in New York seeks to have Trump removed from the ballot,” he said.