Ryan Kelley, a protest organizer, for the  American Patriot Rally organized by the Michigan United for Liberty for the reopening of businesses stands on the steps of the Michigan State Capitol in Lansing, Michigan on April 30, 2020. - The group is upset with Michigan Gov. Gretchen Whitmer's mandatory closure to curtail Covid-19. (Photo by JEFF KOWALSKY / AFP) (Photo by JEFF KOWALSKY/AFP via Getty Images)
Ryan Kelley, a protest organizer, for the American Patriot Rally organized by the Michigan United for Liberty for the reopening of businesses stands on the steps of the Michigan State Capitol in Lansing, Michigan on April 30, 2020. - The group is upset with Michigan Gov. Gretchen Whitmer's mandatory closure to curtail Covid-19. (Photo by JEFF KOWALSKY / AFP) (Photo by JEFF KOWALSKY/AFP via Getty Images)

SUMMARY:
The goal of a lawsuit filed Thursday is to disqualify Republican gubernatorial candidate Ryan Kelley from the November ballot. It claims he violated the 14th Amendment of the US Constitution when he participated in the deadly insurrectionist riots at the US Capitol on Jan. 6. 

UPDATE: 

On July 21, the Michigan Court of Appeals rejected a request in this litigation to have Kelley declared ineligible to run in this year’s gubernatorial election. The judge didn’t say whether or not Kelley was an insurrectionist or if he was qualified to run for governor. Instead, it was rejected on procedural grounds. 

Absent a successful appeal, his gubernatorial campaign can proceed. A separate criminal case against Kelley tied to his involvement in the insurrection will continue. He’s due back in court in September. 

LANSING—A lawsuit filed Thursday asks a Michigan judge to declare GOP gubernatorial hopeful Ryan Kelley an “insurrectionist,” throwing out all votes for him in the August 2 primary election and cutting his name from the November ballot altogether.

The case—funded by a liberal advocacy group and filed by a lawyer who is a former chairman of the state Democratic Party—hinges on a clause in the 14th Amendment of the US Constitution, which bars any official who has “engaged in insurrection or rebellion” against the United States from again holding office.

This civil litigation is entirely separate from Kelley’s existing criminal charges, which also stem from his involvement in the Jan. 6 insurrection at the US Capitol. Listing Michigan Secretary of State Jocelyn Benson as the defendant, today’s lawsuit aims to stop Kelley’s campaign for governor in its tracks. Technically, the lawsuit requests that a judge order Benson, whose office oversees the Board of State Canvassers, to nullify any votes for Kelley in the August primary election and exclude him from the general election in November, as well as inform voters that Kelley is not a legitimate candidate. If the lawsuit is successful, Kelley will be unable to serve as the Republican Party’s nominee this year—even if he were to garner the most votes next month.

What is the lawsuit about?

The 14th Amendment of the US Constitution was installed after the Civil War as a way to keep former Confederate officials from regaining power in both state and federal government. The Amendment asserts that no one who has sworn an oath to the Constitution while serving as an elected state or federal official can serve in an elected office after participating in an “insurrection” or “rebellion.”

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having 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 as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

14th Amendment, Section 3

The lawsuit alleges that Kelley—a former member of the Allendale Planning Commission—took an oath to the Constitution in December 2019, a little more than a year before the insurrection at the Capitol.

An exhibit from the lawsuit allegedly showing Kelley’s oath.

The plaintiff in the lawsuit is Oakland County resident Lee Estes, who is represented by Mark Brewer, a prominent Michigan attorney and former chairman of the Michigan Democratic Party. Progress Michigan, a liberal advocacy group, provided “research and financial support” for the litigation, and circulated a press release, along with copies of the recent court filings.

“It’s simple, really. If you supported and participated in the January 6 insurrection, you should not have the privilege of holding–or even running–for public office,” Lonnie Scott, executive director of Progress Michigan said in a statement. “Whether it’s Kelley or anyone else that was illegally at the Capitol trying to overturn the will of the people, there needs to be accountability.”

The case was filed against Benson because it seeks to alter the way ballots are counted in August and printed in November, which falls under Benson’s jurisdiction as the state’s chief election official. Whether the Michigan Court of Appeals orders action depends largely on if the judge finds that Kelley’s actions on Jan. 6 amounted to a violation of his oath and an insurrection. Benson has no role in the court’s decision.

Michigan Attorney General Dana Nessel, however, would be responsible for defending Benson, as it falls under her official duties to defend the Department of State and Board of State Canvassers, which are defendants in the case. In a Planned Parenthood case filed earlier this year against the Michigan Attorney General seeking to bar prosecution of abortions, Nessel declined to defend her office, saying that she was at conflict with the abortion ban in question.

No hearings have yet been scheduled, though Brewer has asked for expedient consideration. 

The litigation appears to be the first use of the 14th Amendment argument against a candidate in Michigan and one of the first nationally since Jan. 6. In court documents, Brewer labels Kelley a “clear and present danger to democracy in Michigan.” 

Yes and no. If successful, today’s civil case against Benson would distinguish Kelley as an insurrectionist and throw him out of the race for governor under Constitutional grounds. It would not generate any criminal charges against Kelley. 

The federal case, which involves four criminal misdemeanor charges against Kelley for his role in the Jan. 6 insurrection, does not and would not label Kelley an insurrectionist, no matter the outcome. It would not impact his eligibility for governor.

The two cases largely draw on the same evidence and materials, citing social media pictures that seem to place Kelley at the Capitol and show him climbing scaffolding and urging rioters forward. But the federal criminal charges and the newest civil case would have very different outcomes.  

Here’s a refresher on the criminal charges. In June, Kelley was arrested by the FBI and charged with four federal misdemeanor charges:

  • Knowingly entering or remaining in any restricted building or grounds without lawful authority;
  • Disorderly and disruptive conduct in a restricted building or grounds;
  • Knowingly engaging in any act of physical violence against person or property in any restricted building or grounds; and
  • Willfully injuring or committing any depredation against any property of the United States.

Each misdemeanor in Kelley’s criminal case carries a maximum penalty of up to a year in prison and fines, but they do not threaten his ability to run for governor or assume the office next year.

“Frankly, there’s no way to keep him off of the ballot, and if he were to win, it would be very difficult to remove him from office,” Nessel told ABC in a June interview.

The bottom line: If Kelley is deemed an insurrectionist at the state level, it would have no impact on his federal trial. Meanwhile, a criminal conviction would have no bearing on his prospects for governor.

Can the existing criminal charges impact Kelley’s bid for governor?

No. 

Under state law, there’s nothing to throw Kelley out of the race for a misdemeanor conviction. 

If Kelley became governor and then was found guilty of federal charges, possibly leading to jail time, voters would have the option to recall him—though they couldn’t do so during his first year in office. Kelley could also be impeached, but that would require unlikely supermajority support among Republican state lawmakers. 

What about the new civil case?

Yes—at least in theory. 

Though the criminal case brought by the FBI may take months to unfold, the new separate civil case to disqualify Kelley under the 14th Amendment could cancel his candidacy before November and force the Michigan Republican Party to select a replacement candidate in his stead.

In March, the nonpartisan Citizens for Responsibility and Ethics in Washington sent a letter to the US Department of Justice asking the department to enforce the 14th Amendment for candidates—much like Kelley—who attended the deadly Jan. 6 insurrection at the US Capitol.

But the liberal-led legal challenge represents relatively uncharted territory without recent precedent. In 1919, Congress reportedly used the 14th Amendment to block an elected official, Victor Berger, from assuming his seat in the House because he actively opposed US intervention in World War I. Though some scholars had contemplated using the mechanism against former President Donald Trump, it didn’t happen, and the 14th Amendment hasn’t been invoked against any other members of Congress accused of stoking the flames on Jan. 6, either. 

The text of Section 3 of the 14th Amendment doesn’t explain how it should be enforced, though some experts have argued it would take a combination of legislation and litigation.

There is also significant disagreement about whether the 14th Amendment can still be applied in this case or whether it is still valid at all. Some legal scholars have argued that the Amnesty Act of 1872 effectively canceled out punishments from the 14th Amendment.

What did Kelley say about the charges?

Kelley’s campaign put out a press release Thursday afternoon, in which he denied that he partook in an insurrection.

“Radical left groups like “Progress Michigan” are trying to keep me off the ballot and manipulate voters with dishonest claims, because they know that I am best suited to take on Governor Whitmer in November, and bring Michigan back from her and Biden’s disastrous policies,” Kelley said.

Who is Kelley’s pick for Lieutenant Governor and how does she fit in?

On Tuesday, Kelley announced his running mate  for lieutenant governor: Jamie Swafford, a former Michigan GOP ethnic vice chair and a former public safety employee in Portage. If Kelley became governor and was sent to prison, Stafford would be tasked with taking his place. If Kelley is excluded from the ballot, his lieutenant governor selection would likely be irrelevant, though a replacement candidate could theoretically choose to keep Swafford. 

Swafford—who also attended the Jan. 6 Trump rally in Washington, DC—has not been charged with a crime tied to the riot, nor is her name mentioned in the latest litigation against Benson. Swafford was also a part of the November 2020 “Stop the Steal” conspiracy rally in Lansing.

There is no evidence that Swafford moved toward the US Capitol after Trump’s speech. 

How’s Kelley’s campaign doing in the polls? 

When FBI charges were first announced, Kelley surged to the top of polls, particularly after  his campaign labeled him a “political prisoner” in a Facebook post. A recent Detroit News poll found that he is still on track to perform the best of GOP candidates in an election against Gov. Gretchen Whitmer. 

However, in a Whitmer vs. Kelley showdown, the Democratic incumbent still leads Kelley by eight points, 49-41, according to polling. That poll was commissioned before Kelley announced Swafford, a relative unknown within most Lansing political circles, but a previous office-holder with some recognition  within the Michigan Republican Party. 

“I don’t see the party or its voters stepping away from him in any way,” Brewer, the civil suit attorney, told The ‘Gander.

If Kelley wins the August primary, the 14th Amendment case filed on Tuesday would likely become the only obstacle in the way of a showdown with Whitmer in November. In response to the news of the lawsuit, GOP consultant Fred Wszolek took to Twitter to label it a liberal attempt to rally support around Kelley in the primaries, since some Democrats feel he would be a relatively easy candidate to beat.

At the time of publication, none of the other four GOP candidates had responded to requests for comments on the lawsuit. Messages to Kelley’s campaign weren’t returned.

The Michigan Secretary of State replied that it doesn’t comment on ongoing litigation.