PHOENIX — A bid to keep Donald Trump off the 2024 Arizona presidential preference ballot should be thrown out because there’s not a chance in the world that challenger John Castro would get nominated, much less elected, an attorney for Trump says.
In new court filings, Tim La Sota, representing Trump, says U.S. District Court Judge Douglas Reyes has no legal authority to rule the 14th Amendment makes the former president ineligible to be a nominee for president based on allegations about his activities around the Jan. 6, 2021, Capitol insurrection.
La Sota argues that amendment, about disqualifying for office anyone who engaged in insurrection or gave aid and comfort to enemies, doesn’t even apply to the president.
But La Sota argues there’s an even bigger problem with the lawsuit Castro filed in federal court here. Castro lacks standing to sue, he said, because he cannot show that Trump’s presence on the ballot will harm him in any way.
“Implausible” claims, lawyer says
Castro has registered with the Federal Elections Commission as a presidential candidate. He filed a sworn affidavit with the court saying he intends to file a petition to be on the ballot for the state’s March 19, 2024 presidential preference election when the Arizona Secretary of State’s Office begins accepting them starting Nov. 13.
But La Sota said a one-page form filed with the FEC does not confer standing to sue in federal court.
“There are currently approximately 292 individuals registered with the FEC as Republican Party candidates for the presidency,’’ he wrote. “Only a few of these registered ‘candidates’ will launch an actual presidential campaign.’’
Then there’s the fact that Castro, by his own campaign finance reports, has not raised a single dollar in contributions from anyone in Arizona. Instead he lists a $20 million loan to his campaign.
“Plaintiff does not allege any concrete support from anyone, let alone voters and/or political actions in this state and/or the Arizona Republican Party,’’ La Sota told the judge.
He said it’s not just about the money. “Plaintiff has not identified a single voter or donor who identifies Castro as his or her ‘second choice’ after President Trump,’’ he said.
At best, La Sota said, Castro is claiming he has “spoken to thousands of voters who have expressed that they would vote for Castro only if Trump is not a presidential candidate.’’ But he said Castro has no expert or social science evidence that could support “the inherently improbable claim that there is a latent Castro movement that would surface among Arizona voters if only Trump was not on the ballot.’’
John Castro
The bottom line, La Sota told Rayes, is that the judge doesn’t have to accept Castro’s “implausible’’ claims that he is entitled to sue to keep Trump off the ballot.
“If a plaintiff were to claim that, if only the court would order that his opponent case doing X, plaintiff would be able to float off into the air, the court is not simply required to accept that fantastic assertion as a basis for (legal) standing absent some measure of proof that the plaintiff actually would float into the air, or at least that there is a plausible basis for believing that he would,’’ La Sota wrote.
“Ostrich’s head is truly in the sand”
In his own legal filing, Castro said there is plenty of evidence he is a serious candidate — and with realistic chances.
For example, he said, while there may be 292 FEC-registered candidates for president, he is one of fewer than 10 Republicans who already filed to be on the ballot in both Nevada and New Hampshire.
Castro pointed to similar lawsuits he has filed, including one where he has petitioned the U.S. Supreme Court. He noted that Rayes took this case seriously enough to schedule an expedited trial.
Yet with all that, Castro said, Trump calls his candidacy “far too conjectural’’ and “neither real nor immediate.’’
“The ostrich’s head is truly in the sand,’’ Castro told the judge.
Castro, who is representing himself, also said Rayes doesn’t necessarily need to take his word for it that there are people who said they would vote for him if Trump is kept off the ballot.
“It is common sense that plaintiff would obtain more political support in the absence of defendant Donald John Trump, which any other Republican candidate can certainly attest to,’’ Castro said.
“Defendant Donald John Trump and plaintiff John Anthony Castro are both competing for the same voters,’’ he continued. “Hence, plaintiff has a political competitive injury-in-fact.’’
14th Amendment issue
Much of the rest of La Sota’s 35-page argument about why Rayes should throw out Castro’s case mimics arguments made by others who have faced similar lawsuits seeking to keep Trump off the ballot. These go to whether a court can enforce the 14th Amendment. They contend that allowing or requiring Arizona officials to make such a decision would illegally be allowing states to add new qualifications on who can run for president.
But La Sota said that, regardless of what Trump did or did not do around Jan. 6, the 14th Amendment and its disqualification do not apply to him.
He acknowledged the section does govern who can be president, vice president or a member of Congress. La Sota pointed out, however, that disqualification applies to anyone who had “previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or an an executive or judicial officer of any state, to support the Constitution of the United States.’’
“The phrase ‘officers of the United States’ does not include the president,’’ he argued.
La Sota said everyone on that list takes an oath to “support the Constitution of the United States.’’ By contrast, he said, the president vows to “preserve, protect and defend the Constitution of the United States.’’
“It establishes that the drafters of the 14th Amendment did not understand the president to be an officer of the United States,’’ he said.
Rayes has not set a deadline to reach a decision.
