Kennedy sues to get off Wisconsin ballot

Robert F. Kennedy, Jr., who has suspended his presidential campaign and is asking his supporters in all 50 states to vote for Donald Trump for president, has sued to remove his name from the November ballot in Wisconsin.

Kennedy’s action comes after the state elections commission voted 5-1 on August 27 to keep his name on the ballot despite Kennedy’s plea to remove it, with commission members stating that state law requires his name to appear.

Multiple members of the commission struggled with the law’s language, though, owing to the obvious fact that the ballot had not yet been set. In addition, major parties had until September 3 to certify their candidates, while third party candidates and independents had only until August 6. The WEC meeting was held August 27.

Like it or not, WEC commission chairwoman Ann Jacobs said at the meeting, the law was the law and it was crystal clear.

“The statute literally says, ‘Any person who files nomination papers and qualifies to appear on the ballot may not decline nomination. The name of that person shall appear upon the ballot except in case of death of the person,’” Jacobs said, quoting the law and adding that it was “weird” but she didn’t think the commission had any discretion.

In the lawsuit, Kennedy’s attorneys, Aaron Siri and Elizabeth Brehm, argued that the commission did have discretion and were misreading the law. The brief pointed to the part of the statute that declares that a person who files nomination papers and ‘qualifies to appear on the ballot’ must stay on the ballot.

“While Kennedy clearly filed nominating papers, he does not ‘qualify’ to ‘appear on the ballot,’” the brief stated. “Under Wisconsin law, a person is not qualified to appear on the ballot until the commission approves them for the ballot. In other words, the commission’s approval is the last and necessary step in the qualification process.”

That is, Kennedy argued, if the person files nomination papers but then doesn’t get the requisite documents or isn’t age-eligible, that person isn’t qualified for the ballot. 

“The qualification comes when the commission agrees that everything is in order,” the brief states. “But here, before the commission could approve Kennedy’s candidacy, he said: ‘no, I’m withdrawing, I don’t want to be part of this.’ So, his withdrawal doesn’t come within the limits of [the law], because he shouldn’t have been put on there in the first place.”

Discrimination

In his brief, Kennedy also argued that the law is discriminatory because it treats third-party candidates differently.

“From time to time (as we have here), third parties have been treated differently in Wisconsin from those inside the entrenched two-party system,” the brief states. 

Practically, the attorneys wrote, Wisconsin’s deadlines for ballot access give Democrats and Republicans a greater opportunity to disassociate from a candidate or for a candidate to disassociate from the campaign, just as Joe Biden did.

“Specifically, [the statute] provides that these political parties have until ‘5 p.m. on the first Tuesday in September preceding a presidential election’ (today) [the suit was filed September 3] to ‘certify the names of the party’s nominees for president and vice president’ to the Wisconsin Elections Commission,” the brief stated. “In contrast, [the statute] says that an independent candidate must commit a full month earlier.”

That deadline is the first Tuesday in August preceding a presidential election, the attorneys observed and added that it was worth noting that Kennedy would have had to withdraw before the Democratic Party had even announced its candidate.

“These statutory deadlines advantage the Democrats and Republicans in multiple ways,” the brief contended. “They get more time to vet a candidate. Should a candidate have a scandal (or health issues) just a few months out from the election, the major parties can potentially backtrack and try to get someone else on the ballot. An independent candidate, however, must move faster — a full month faster. Not only does the statute give the Democrats and Republicans more time for vetting, but it also gives them more time to contemplate the best course of action for the candidate.”

What’s more, the lawsuit contends, forcing Kennedy to remain on the ballot violates his rights under the First Amendment. 

“The First Amendment’s seven distinct promises often overlap in their protections,” the brief states. “Here, forcing Kennedy to remain on the ballot stands as compelled speech — he must state that he’s a candidate for something he has publicly avowed he’s not.”

It doubles as compelled association, the attorneys wrote.

“The right to associate also entails the right not to associate; and here, Kennedy is being compelled to associate with a campaign he’s publicly avowed he’s against,” the brief states. “And the point is more than an academic matter. Kennedy’s health and safety are put at risk by forced involvement in the presidential race — after all, President Biden ordered the U.S. Secret Service to protect Kennedy and after he suspended his campaign that protection was yanked. Continued association as a candidate in the presidential race thus brings obvious health and safety risks.”

Including Kennedy’s name on the ballot forces his association in the political process against his will, the attorneys declared: “The First Amendment does not allow for such involuntary action, especially as it relates to speech and association.”

Keeping Kennedy on the ballot also harms voters, the attorneys asserted.

“Here, Kennedy is a national political figure and he does not want to represent to the citizens of Wisconsin that he is vying for their votes for the office of President of the United States,” the brief asserts. “Placing his name on the ballot against his will compels his speech and subjects him to derision, anger, reputational harm, and loss of good will by those who would vote for him based on this speech to later find out their vote was wasted.”

Free speech means a free-flow of information within the economy of ideas; it is not meant to force Kennedy to facilitate a message that is neither accurate nor true — namely, that he wants to be voted for by the people in Wisconsin, the attorney argued. Beyond that simple point, they added, Kennedy has publicly endorsed President Donald Trump’s candidacy for the November 2024 presidential election. 

“By forcibly including Kennedy’s name on the ballot, defendants are falsely representing to the people of Wisconsin that Kennedy is running against President Trump and is opposed to President Trump’s candidacy,” the brief stated. “Nothing could be further from the truth. Yet, by forcing him to remain on the ballot that message is intentionally conveyed. Such compelled speech is anathema to the First Amendment.”

Then, too, the attorneys argued, if Joe Biden can quit the race, so should Kennedy be able to quit the race. Ultimately, the lawsuit continued, Kennedy has, like Biden, decided that for associational and expressive reasons, he does not want to run for president anymore. 

“The deadlines prevent him from withdrawing, even though the Democratic and Republican parties (at least in theory) could provide a different nominee to the commission today,” the brief states. “The commission cannot claim any compelling state interest in forcing independent candidates to file paperwork a month earlier. Even if the commission needs more time to review an independent candidate’s paperwork, it does not need a full month.”

And even if the commission did need a full month, the attorneys added, there is no reason to prevent an independent candidate from dropping out when he or she acts before a key deadline set for major political parties. 

“If today is ‘good enough’ for the Democrats and Republicans, today is ‘good enough’ for Kennedy and any other independent candidate who wants to remove himself or herself from the ballot,” the brief stated. “If nothing else, the promise of equal protection provides that ‘good enough’ for the major parties applies with equal force to the independents.”

Ask yourself, why would that be?

The facts alleged make it plain, Kennedy’s attorneys argued, that there’s a different set of rules for Kennedy than for Biden, and there’s a different playbook for the Democrats than for independents. 

“That different set violates the promise of equal protection for candidates,” the brief argues. “And it violates Kennedy’s rights to free speech and association. …. [T]hose constitutional problems can all be avoided by properly interpreting the Wisconsin statutes governing elections. Indeed, a qualified candidate isn’t simply a person who is over thirty-five and a citizen; rather, a qualified candidate is one who has put himself out there and declared that he wants to be a candidate. After all, no one can be drafted into being a candidate and a person isn’t actually a viable (read: qualified) candidate until the commission puts him on the ballot.”

Kennedy let the commission know he wasn’t interested far, far before the commission made that decision, the attorneys wrote. 

“Whether this court engages with the concrete demands of the Equal Protection Clause, the lofty promises of the First Amendment, or the technical reading of the statute, the result is the same: The commission must be enjoined from placing Kennedy’s name on the ballot,” the brief asserted.

Finally, the attorneys wondered about the reasoning for the different treatment for Kennedy.

“The real question is: Why?” the brief asked. “Why the different playbook for Kennedy as opposed to Biden?”

It can’t be because of the legwork involved, the attorneys reasoned.

“Kennedy simply wants off the ballot, there is no rigorous testing of a candidate’s bona fides when they want off the ballot — you simply do not include his name,” the brief stated. “It can’t be because of some compelling state need; in other words, we’re simply asking to not be put on the ballot, as opposed to getting on it.”

Again, the attorneys reiterated, state law provides a mechanism for removing someone in case of death — so it can be done.

“Without any reason — let alone a compelling reason — the only difference in the treatment rests on the prohibited fact that independents are treated differently (read: worse) than mainstream party candidates,” the attorneys wrote.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.