The Attorney General’s Office is asking to intervene on behalf of the State of West Virginia in a federal lawsuit that aims to keep former President Donald Trump off ballots.
Secretary of State Mac Warner is already named in the lawsuit in his official capacity as the state’s chief elections officer. The Attorney General is asking to enter the case to represent the state more broadly.
“In short, although one state officer is already involved in this case, West Virginia law expects that the Attorney General will remain involved in cases of public importance to ensure that courts are informed of any interests beyond that officer’s narrow remit,” wrote lawyers for the Attorney General in a motion filed today.
The filing continued, “Allowing the State to intervene will enable the State’s chief legal officer, the Attorney General, to express his views on the legal matters before the Court, as his State constitutional rights and duties expect he will.”
The lawsuit was filed last month in U.S. District Court for the Southern District of West Virginia, along with parallel efforts in other states. The man who filed it, John Anthony Castro, is a write-in Republican presidential candidate from Texas.
The filing touched off a frenzy among Republican political figures in West Virginia, with statement after statement arguing against voters being deprived of Trump as a ballot option.
The concept in the lawsuit is that Article 3 of the 14th Amendment disqualifies federal officeholders who “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The amendment was passed in 1868 as a Civil War response.
The Attorney General’s new filing calls Castro a “serial, out-of-state litigant who seeks to deprive hundreds of thousands of West Virginians of their preferred choice for President of the United States.
“In doing so, Castro relies on a constitutional provision designed to ensure that certain Confederate belligerents would not retake federal office during the Reconstruction Era.”
The possibility of applying the 14th Amendment disqualification to Trump gained steam after a pair of conservative legal scholars affiliated with the Federalist Society — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — endorsed the theory in the New York Times.
Laurence Tribe, a liberal constitutional scholar at Harvard Law School, and retired conservative judge J. Michael Luttig then joined forces in a magazine piece, “The Constitution prohibits Trump from ever being president again.”
The legal scholars contend the constitutional disqualification is self-executing and requires no legislation, criminal conviction, or other judicial action.
Still, as the concept has been discussed nationally, questions have persisted over how that would work in practice.
Castro has filed suit in states including New Hampshire, Florida, Utah, Wisconsin, Michigan and Pennsylvania.
The lawsuit includes several paragraphs meant to demonstrate Trump’s connection with insurrection activity following the 2020 presidential election, including a statement in a debate to the Proud Boys group to “stand back and stand by,” a videotaped statement following the Jan. 6 riots that “we love you; you’re very special” and a more recent statement by Trump indicating willingness to pardon people convicted in the Capitol riots.
In West Virginia, the case was assigned to U.S. District Judge Irene Berger, and it has been referred to U.S. Magistrate Judge Omar Aboulhosn. The West Virginia Republican Party has filed to intervene in the case.
Castro is a tax consultant who has run for office several times unsuccessfully. He ran as a Democrat in 2004 for a county court of commissioners position in Texas, finishing fifth of five. He ran as a Republican in 2020 for U.S. Senate from Texas, finishing fourth in a primary behind incumbent John Cornyn. Then in 2021, he ran as a Republican in a special election for House of Representatives, coming nowhere close to winning.
In these cases, Castro is serving as his own attorney.
Last week, Aboulhosn recommended denying an emergency application for a hearing on a temporary restraining order and an expedited preliminary injunction. The plaintiff had also asked for a concurrent bench trial on the merits, and that is doubtful too.
Aboulhosn suggests there’s no reason to rush into those decisions and that the plaintiff hasn’t demonstrated that “an immediate and irreparable injury will occur” before the defendants, including Trump’s representatives, have had a chance to weigh in.
In a filing objecting to those recommendations, Castro contended that every day it’s assumed Trump is on the ballot is a day lost.
“Each day that Defendant Donald John Trump is permitted to continue his charade of purporting to be an qualified and eligible candidate is harming the National Republican Party, the WVGOP, all other qualified and eligible candidates, and, most importantly to the judicial discernment of this Court, Plaintiff,” Castro wrote.