In the first challenge, local voters Beth Findley-Smith and Timothy Conrad claimed President Biden had his candidacy papers notarized in Washington and not locally.
General counsel Marni Malowitz noted that the board overruled a similar case for candidate Kanye West previously, and recommended the board do the same.
In the second challenge, three local voters, two of whom were not present, claimed President Biden was ineligible for candidacy under Section 3 of the 14th Amendment.
The vote came after a hearing and unanimous vote to keep former President Donald Trump on the ballot after five local voters challenged his eligibility under Section 3. The board is a bipartisan one made of equal number Republicans and Democrats.
Ms. Malowitz recommended the board grant the motion to dismiss the challenge against President Biden, adding that the challenge was “so inadequate legally and factually.”
The petitioners had argued President Biden’s border policies harmed the nation, as well as issues related to the Afghanistan exit, and a hearing officer had advised that these policies cannot be equated to providing “aid or comfort” to the nation’s enemies as mentioned in Section 3 of the 14th Amendment.
“It’s also a controversial matter that the board does not need to wade into,” Ms. Malowitz added.
Trump Issue
During a hearing regarding Section 3 as it applied to President Trump, board member Jack Vrett said the axiom “hard cases make bad law” certainly applied.“If we exceeded our authority … and looked at the underlying of conduct … I think what we would see would be an opening of floodgates of litigation,” he said. For example, every school board candidate could then challenge their rivals over alleged criminal conduct and require election boards to investigate.
“The relief that petitioners are seeking is one of ballot forfeiture” and they had not met that threshold, he added.
Board member Cristina Cray was the only other member to make a statement, wanting to state on the record that she was a Republican but that “there’s no doubt in my mind” that President Trump engaged in “insurrection.” She said she did not think the board had the jurisdiction to rule on such an issue.
Ms. Malowitz had advised the board that even if it didn’t have authority to analyze constitutional issues, it had statutory authority regarding ballot certification. She said she was not convinced President Trump had filed false papers. She added that several issues needed determination before the matter of whether of Section 3 constituted insurrection, and recommended the board not touch on that issue.
The unanimous vote to keep President Trump on the ballot came after a hearing officer recommended that the motion to dismiss be granted. The hearing officer, former judge Clark Erickson, a Republican, recommended the board find that President Trump engaged in insurrection on Jan. 6 and was thus disqualified as a candidate. He had drawn his conclusions from evidence presented at trial in a Colorado district court, which was largely drawn from the January 6 Select Committee report.
