Local citizens with more chops than I filed an objection to keep DJ Trump off the presidential primary ballot in Washington state, but two judges and the Secretary of State all declined to enforce the 14th amendment, saying it wasn’t their call.
In Washington, lists of names of candidates for the presidential primary are submitted to the Secretary of State by the political parties, and any objections must be filed within 48 hours of the list being finalized. The objection must be resolved within 5 days. Secretary of State Steve Hobbs (D) says he has no authority to remove anyone from the list of candidates without a court order. However an objection can be filed within 48 hrs by any voter in WA. Hobbs, who believes (correctly) that the Supreme Court should decide Trump’s eligibility, did not take a position on excluding Trump.
Once the list of candidates was finalized, I waited anxiously to see if there was an organized effort by WA Dems to disqualify Trump within 48 hrs, assuming I would not have the organizational skills and time to object myself. Instead 8 heroic residents of Kitsap County, led by middle school teacher Frankey Ithaka, filed an objection. The affidavit was only a single paragraph and they initially appeared in Kitsap County Superior Court without a lawyer, where the judge decided that the case should be heard in the state capital in Olympia, Thurston County, in what seems to be a clear case of passing the buck. Ithaka stated. “If not us, then who? If we are not a nation that adheres to the Constitution, then we have nothing to stand on.” (Quotes from the Seattle Times.)
On Thursday Ithaka and his allies appeared with their lawyer David Vogel in Thurston County Superior Court before Judge Mary Sue Wilson, appointed by Governor Jay Inslee (D). Vogel urged Wilson to look at the Colorado ruling, arguing that “It is a wrongful act to put a person who is constitutionally disqualified by the 14th Amendment on our state ballot.” But Wilson ruled that the WA statutes with their short timeline do not contemplate a months-long filing and court case such as in CO, and only allow her to correct clear errors. She said she could only consider the single paragraph affidavit and declined to remove Trump from the primary ballot. She did not exclude the possibility of removing him from the general ballot, saying the question was premature.
Joel Ard, representing the Washington State Republican Party, argued that the parties are responsible for who is on the primary ballot and the law in question does not apply, and no complaint was served to the party. Wilson largely waived the procedural arguments, saying the law does apply. It is unclear to me that there is any need to notify the R party.
Wilson may be correct that WA law does not contemplate controversial cases of untested applications of the 14th Amendment, but the Constitution supersedes WA law and it seems to this non-lawyer that she followed the wrong law. Allowing Trump on the ballot also seems like a “clear error” but I acknowledge that this view is not universally shared. Vogel does not anticipate an appeal, but said, “We need to beef up the affidavit for the general election.” Hopefully SCOTUS will have ruled by that time and made further litigation moot, for better or worse.
I have several questions. Should WA law be changed to eliminate the short timeline for challenges that obviously failed to accommodate an important question? If a presidential candidate were less than 35 or not a citizen would the Secretary of State still require a court order to exclude him or her from the ballot? Is there a rationale for why Thurston County should have jurisdiction rather than the county where the objection was filed, or was this solely for the Kitsap judge to avoid making a controversial ruling? I assume the argument is that the Secretary of State is in Olympia, but voters are all over the state. Does the same short timeline apply to the general election ballot?
As a practical matter, if Trump is excluded from the ballot in reliably blue WA, it is unlikely to affect the electoral college count, and any ruling will be superseded by SCOTUS. However, it is also a practical matter to figure out how the 14th Amendment can be enforced in an efficient way that doesn’t keep it from being meaningless. Although SCOTUS is also likely to try to punt the 14th Amendment, I still hold some hope that they will give it the ruling required for enforcement.