Will Silicon Valley lawmaker’s plan to toss Trump off ballot work?

A local state assemblyman wants to remove former President Donald Trump from the March primary ballot, but the law may not be on his side.

Trump’s eligibility to be on the ballot hinges on the outcome of his federal indictment over the Jan. 6, 2021 attack on the U.S. Capitol. The first trial date in Trump’s federal indictment is March 4, but the jury selection and other procedural steps will likely push it out farther. That’s according to Larry Gerston, a political science professor emeritus at San Jose State University.

“It’ll be a miracle if that trial is held before summer,” he told San José Spotlight.

Assemblymember Evan Low and eight other California legislators sent a letter to Attorney General Rob Bonta over the weekend calling for him to seek a court opinion on whether Trump is eligible to hold public office.

A number of states are questioning Trump’s eligibility for the primary ballot, citing section 3 of the 14th Amendment. Section 3 states that if someone takes an oath to uphold the Constitution and then supports “insurrection or rebellion against the same,” they cannot hold public office.

Gerston said barring someone from running under Section 3 of the 14th Amendment requires being found legally guilty of having engaged in an insurrection.

If a state did try to remove Trump from the primary ballot before his Jan. 6 case had a verdict, Gerston said he would likely sue. Without a court decision on the federal case, any calls to remove Trump from primary ballots are based on accusations, Gerston added.

According to Eddie Kirby, Low’s spokesperson, the law’s precedent shows a conviction may not be needed to disqualify Trump from the ballot, citing eight past cases.

“No conviction is required for removal from the ballot legally or historically,” Kirby told San José Spotlight. “The point of the letter is to speed up the court’s decision making on whether or not Donald Trump is disqualified because of the 14th Amendment of the U.S. Constitution.”

The secretaries of state have looked to the courts for answers, as the final decision on eligibility hinges on Trump’s existing federal case. Lawsuits have been filed in Colorado and Minnesota seeking information on his eligibility ahead of the primaries, based on the 14th Amendment argument outlined by University of Chicago law professor William Baude and University of St. Thomas School of Law professor Michael Stokes Paulsen.

Low represents District 26, which includes Cupertino, a portion of San Jose, Santa Clara and Sunnyvale, and the unincorporated areas of Burbank and Fruitdale. He thinks California’s attorney general is in a “unique position” to seek court opinion on the topic of Trump’s eligibility.

“Whatever the courts decide, it is important that they do so quickly to avoid further political strife,” Low told San José Spotlight.

But Gerston doesn’t think legislators have a shot at removing him without a verdict.

“The best these folks can hope for … is to wait to see what the judiciary says,” Gerston said. “I understand people are desperate to try to shape the primary system in such a way to deny former President Trump, but you know those are the rules and you’ve gotta go by the rules.”

Contact B. Sakura Cannestra at [email protected] or @SakuCannestra on X, formerly known as Twitter.