« Is a hedgehog a momentary fox? | Main | Saturday Music Post - L'Shana Tova »

Thursday, September 14, 2023

Judicial supremacy and proceduralism

I seem to be spending the day reacting to Gerard. He wrote this at Balkin, pointing out that many secretaries of state will not act in the absence of a SCOTUS ruling and will not take the steps necessary to obtain that ruling. Much commentary (especially from non-legal-scholars but also from lawyers who should know better) has taken the tone of "no secretary of state can keep Trump off the ballot, only SCOTUS can."

The problem strikes me as a combination of judicial supremacy, misunderstanding procedure and how cases come to the Court, and an assumption that everything is an EpY action in federal district court. Accepting the Court must have the last word, that is the end of the game; something must happen at the beginning, when someone does something to trigger judicial review. The pervasive lack of understanding (or bad faith) means no one will understand or accept when a Secretary of State excludes Trump from the ballot to create the opportunity for litigation. Nor will they accept the case going through state rather than federal court. Everyone seems to be waiting for a random person to file suit in federal court, ignoring the obvious lack of standing.

Posted by Howard Wasserman on September 14, 2023 at 02:17 PM in Howard Wasserman, Judicial Process | Permalink


Here’s how and why a challenge to Trump’s ballot listing may begin:

Lawfare 2.0 – 13 States Now Considering ‘Trump Ballot Ban’ for 2024

Connecticut has just become the 13th state in which officials are considering banning former president Donald Trump from the ballot based upon the controversial Section 13 of the Fourteenth Amendment to the Constitution.

This most recent challenge to Trump’s candidacy comes in the form of a formal request filed with Connecticut’s Secretary of the State Stephanie Thomas, asking her to conduct a fact-finding hearing on the matter.

This parallels formal legal demands pursuant to Section 13 filed by Prof John Banzhaf in Arizona, Arkansas, Connecticut, Florida, Georgia, Maine, Michigan, Nevada, New Hampshire, New Jersey, Ohio, North Carolina, and Pennsylvania which also request a fact-finding hearing.

Another section of the Fourteenth Amendment which says than no person can be deprived of any “liberty” or “property” type interest without due process of law means that there must first be an adjudicative (fact-finding) hearing before Trump could be removed from ballots.

At such a hearing, which could be performed by a court or by an agency such as the Office of the Secretary of State, Trump would be entitled to a number of procedural

Then and only then – if he has been found to “have engaged in insurrection or rebellion” after a fact-finding (adjudicative) hearing at which he is accorded due process – his name must be removed.

Posted by: LawProf John Banzhaf | Sep 14, 2023 4:02:37 PM

The comments to this entry are closed.