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No, Missouri's Secretary of State cannot legally remove Joe Biden from the 2024 ballot

Aviva Okeson-Haberman
KCUR 89.3
Joe Biden campaigning in Missouri in March 2020.

Secretary of State Jay Ashcroft threatened to unilaterally kick President Joe Biden off of the Missouri ballot if Donald Trump is disqualified in other states for violating the U.S. Constitution's insurrection clause. But an appeals court ruling found Missouri law did not give the secretary of state that power.

Missouri law won’t allow Secretary of State Jay Ashcroft to unilaterally disqualify President Joe Biden from the ballot, as he has threatened to do if Donald Trump is kept off the ballot in other states, according to participants in a decade-old case that set limits on the authority of the office.

Only a court can remove Biden from the ballot, they said, and only if another presidential hopeful files a lawsuit.

In 2014, Natalie Vowell filed as a candidate for the Missouri House. Then-Secretary of State Jason Kander, after checking her voter registration, determined she had not been a registered voter for two years and removed her from the list of candidates.

In a case challenging that decision, the Western District Court of Appeals found no authority in state law for the secretary of state to decide on the qualifications of candidates. The legislature gave that authority to the courts, the judges ruled, and as a result it “minimizes the partisan political mischief that can result from ministerial officers adjudicating candidate qualifications.”

David Roland, the attorney who represented Vowell, and Boone County Clerk Brianna Lennon, who worked as elections counsel for Kander at the time, said nothing new in state law has changed that precedent.

“The problem of empowering an executive official to make a decision on whether someone should or should not be on the ballot is hugely problematic,” said Roland, the director of litigation for the libertarian Freedom Center of Missouri. “That is why it is so important we took that case at that time.”

The case ended a process that was routine in the office at the time, Lennon said.

“I was the elections counsel in Secretary Kander’s office so it is burned into my memory,” she said. What it proved is that “the secretary of state’s office does not have very much power in Missouri.”

In this year’s presidential contest, Colorado and Maine have issued rulings that Trump is not eligible because his actions during the violent assault on the U.S. Capitol on Jan. 6, 2021, violated the 14th Amendment. Passed after the Civil War, the amendment bars from federal office anyone who had previously taken an oath as a federal or state officer to support the Constitution and then “engaged in insurrection or rebellion” against the United States or “given aid or comfort” to its enemies.

Ashcroft, in an interview with The Independent, said he believes that if the Colorado or Maine decisions are upheld, it will mean he could decide that Biden is not eligible. His authority in that instance, he said, would depend on how the decision was written and whether it supersedes Missouri law.

“It would have to be from the Supreme Court affirming that like that secretaries of state to have the authority or election authorities have the ability on their own to say that the 14th Amendment applies to someone,” Ashcroft said.

It’s not a power he’s eager to have.

“I don’t think I should have that authority,” Ashcroft said.

 Secretary of State Jay Ashcroft speaks to attendees at Missouri Republican Party Lincoln Days in Springfield. Ashcroft is one of three GOP officials expected to run for governor next year.
Jason Rosenbaum
St. Louis Public Radio
Secretary of State Jay Ashcroft speaks to attendees at Missouri Republican Party Lincoln Days in Springfield.

Ashcroft is running for governor this year in a hotly contested Republican primary. House Minority Leader Crystal Quade of Springfield, who is seeking the Democratic nomination for governor, said Ashcroft is seeking publicity and has no power to decide who is on the ballot for any election.

“This is a ridiculous notion that he has any authority to do this,” Quade said. “We’ll see what he tries to do, but I think it’s just another grasping at straws for an election that he’s trying to win and get headlines, just like we’ll continue to see for a long time.”

The Colorado and Maine decisions are the only ones of numerous challenges to Trump’s eligibility that have resulted in a ruling that he is ineligible.

Both decisions are on hold pending appeal. The U.S. Supreme Court has scheduled arguments for Feb. 8 on an appeal of the Colorado ruling. On Friday, Ashcroft used social media to declare that “Secretaries of State will step in & ensure the new legal standard for @realDonaldTrump applies equally to @JoeBiden!”

The 14th Amendment’s insurrection clause, according to the Associated Press, was used once in the 20th century, to deny a House seat to a socialist who opposed U.S. involvement in World War I. Since the Jan. 6 attack, it has been cited by a court to remove a rural New Mexico County Commissioner who had entered the Capitol on Jan. 6.

In the interview, Ashcroft argued that neither the Colorado nor the Maine decisions provided Trump adequate due process.

“It was done by a court in Colorado, but none of the due process that any of us would want if we had a child that was in a Colorado court being prosecuted for something was followed,” Ashcroft said.

In Maine, he said, “it was done by a partisan political elected official that years prior to this even coming up had already said that what had happened was an insurrection and the president shouldn’t be allowed to be on the ballot.”

The Colorado Supreme Court made its decision after an appeal from a trial court. The Main Secretary of State conducted an eight-hour hearing before issuing a 34-page ruling on her findings.

Under Missouri law, a person who otherwise meets the basic qualifications for office can be disqualified for having a felony conviction, failing to pay taxes or failing to file campaign finance reports.

The Department of Revenue, not the secretary of state, determines if taxes have been paid and can act only after a complaint. The Missouri Ethics Commission polices campaign disclosure. Other questions of eligibility are left to the court and the only person who can file the challenge is an opponent seeking the same office.

Ashcroft has no official role in the presidential nominating process in Missouri since there is no longer a state-run primary.

“I have no authority to tell them with regard to the caucus, which is essentially their selection process,” who can be a candidate, he said.

Ashcroft’s office will receive official notice of presidential nominations late in the summer after the parties hold conventions. And the process for electing a president – voters pick electors and do not vote directly for president – raises questions about whether a Missouri court considering a 14th Amendment challenge would look at the candidate for president or the candidates for elector, Roland said.

“For an elector who was at the Capitol on Jan. 6, you could challenge the elector and have a really good chance of getting them knocked off the ballot,” Roland said.

The elector’s political party would designate an alternate and the election result would not change, he said.

Getting a presidential candidate kicked off the ballot by Missouri’s court process would be tricky because it would have to be filed by a presidential candidate themselves, Roland said.

With the Supreme Court hearing arguments Feb. 8, Roland said he expects a decision long before the national conventions.

Republicans threatening Biden’s ballot status are also using the 14th Amendment. Gov. Ron DeSantis of Florida and Texas Lt. Gov. Dan Patrick have said Biden could be removed for “aid and comfort” to enemies of the United States because so many people have entered the U.S. illegally during his administration.

In an interview Monday with CNN, Ashcroft cited the statements from Patrick and DeSantis as providing possible reasons for Biden’s removal in Missouri.

Ashcroft is running for governor this year. One of his rivals, state Sen. Bill Eigel, introduced legislation barring anyone from the presidential ballot based on a declaration from the governor that the state is subject to “invasion” by immigrants in the U.S. illegally and the candidate for president “has been identified by the governor as being associated with such invasion.”

Ashcroft said he wants the election to proceed with all candidates on the ballot.

“I do not like the idea of secretaries of state removing people from the ballot without due process without limiting factors set by law,” he said. “Our job is to follow the law and not in any way to be seen as putting a thumb down on the scale.”

This story was originally published by the Missouri Independent.

Rudi Keller covers the state budget, energy and the legislature for the Missouri Independent.
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