Julia Shumway

(Oregon Capital Chronicle) Oregon Secretary of State LaVonne Griffin-Valade won’t bar former President Donald Trump from appearing on primary ballots despite an ongoing pressure campaign, she announced Thursday.

Griffin-Valade cited legal guidance from the Oregon Department of Justice, whose attorneys told her that presidential primaries operate differently than other races and she doesn’t have the authority to determine whether those candidates meet the qualifications to run. The results of presidential primaries provide direction on how delegates should vote at a nominating convention, but they don’t directly elect candidates or even guarantee the winning candidate is the nominee.

But Griffin-Valade left open the possibility that she could block Trump from the ballot in the 2024 general election if he is the Republican nominee because of his role in the Jan. 6, 2021 insurrection and the potential that his return to office again would violate Section 3 of the 14th Amendment, intended to block former Confederates from gaining power after losing the Civil War.

“I understand that people want to skip to the end of this story. But right now, we don’t even know who the nominee will be,” she said in a statement. “When the general election comes, we’ll follow the law and be completely transparent with our reasoning.”

Solicitor General Benjamin Gutman said in a five-page letter to Griffin-Valade that it was prudent to defer considering the general election, citing ongoing litigation in other states and the question of whether Republicans nominate Trump. He still commands a strong lead in polls, though he also faces 91 felony counts in New York, Georgia, Florida and Washington, D.C.

“Whether Section 3 bars former President Donald Trump from returning to office is a question of paramount importance to American democracy,” Gutman wrote. “But it is not a question that the Legislature has charged the secretary with determining when assembling a list of candidates at the primary election stage. Instead, that important question must be resolved in the first instance by other participants in the selection process such as the convention delegates, and, ultimately, in an appropriate case, by the courts.”

Court cases over whether Trump can appear on ballots are ongoing in Colorado, Michigan and Minnesota – and one could happen in Oregon. Free Speech for People, the national advocacy group that has spent more than two years urging top election officials around the country to block Trump from primary ballots, has retained two Oregon attorneys.

“We disagree with the secretary’s statement, but we are going to proceed with next steps to ensure that this important constitutional provision of the Constitution, Section 3 of the 14th Amendment, is followed, and that Donald Trump be barred from appearing on the presidential primary and general election ballot in Oregon,” said John Bonifaz, the group’s president.

The group argues that Trump is ineligible to hold federal office because the 14th Amendment bars anyone who previously took an oath to support the U.S. Constitution and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” from serving in office. Trump swore to uphold the Constitution at his inauguration, then incited the Jan. 6 attack.

Election officials routinely prevent candidates from running for office if they don’t meet basic qualifications – for instance, people who are too young for offices with age limits or who don’t live in a district with residency requirements. In two high-profile recent Oregon cases, former Secretary of State Shemia Fagan blocked New York Times columnist Nick Kristof from running for governor for residency reasons and Griffin-Valade disqualified conservative state senators who skipped more than 10 days of floor sessions and were ineligible to run for re-election because of a voter-approved state law meant to discourage walkouts. The state Supreme Court upheld Fagan’s decision and will consider Griffin-Valade’s in December.

Bonifaz said there is judicial precedent to bar Trump from the ballot, citing a decision by the 9th Circuit Court of Appeals – the same federal court that covers Oregon – that upheld a 2012 California decision to bar a 27-year-old from appearing on the presidential primary ballot because presidents must be at least 35. That shows that state election officials have the right to block unqualified candidates from presidential primary ballots, he said.

“If Vladimir Putin wanted to appear on the primary ballot for president in Oregon, under the secretary’s analysis today, she’d have no ability to bar Vladimir Putin from appearing on the presidential primary ballot,” Bonifaz said. “And obviously, that’s patently absurd. The reason why we have the United States Constitution to govern these matters is because it’s the supreme law of the land and it has to be followed in all circumstances, including in a presidential primary.” 

Nevertheless, Gutman said the precedent around primary candidates is different – and the state has an example from the 1968 presidential election. Michigan Gov. George Romney – father of U.S. Sen. and former presidential nominee Mitt – was running for the Republican presidential nomination, and questions abounded about whether Romney was a “natural born citizen.” He was born to American parents in Mexico.

At the time, the Oregon attorney general issued an opinion that the secretary of state didn’t have the authority to determine whether Romney was a “natural born citizen.” The office issued a similar opinion when asked whether former President Dwight Eisenhower could be removed from 1952 primary ballots when he wasn’t registered with the Republican Party.