The Banana Republic of Michigan

An absurd legal decision to keep Robert F. Kennedy Jr.’s name on Michigan’s ballot could have profound consequences.

My most recent piece at The Federalist reprinted below.

With the prosecutions of former President Donald Trump, attempts to deprive John Eastman of his law license, and the absurd contempt proceedings against Steve Bannon and Peter Navarro, Americans now understand that something is dreadfully wrong with our legal system. Recently, the ongoing destruction of our legal system has moved to the Great Lakes State. 

There, a legal dispute arose after Robert F. Kennedy Jr. withdrew from the presidential race and petitioned Michigan Secretary of State Jocelyn Benson to remove his name from the ballot. In a sane world, Benson would have removed Kennedy’s name upon receipt of his petition. But Benson is a far-left radical who fancies herself a “guardian” of democracy. She even wrote a self-congratulatory book to that effect. Thus, she refused. 

Benson refused because she understood that if Kennedy’s name remained on the ballot, many Michigan voters would cast a meaningless vote for him, which would help Kamala Harris. On the other hand, if Benson removed Kennedy’s name from the ballot, many of those same voters would cast a crucial vote for Trump, whom Kennedy endorsed on Aug. 23, 2024. Since Michigan is a battleground state, this single dispute could alter the 2024 election and, by implication, the future of the United States of America. 

With Benson’s refusal, Kennedy filed suit. The matter made its way through the Michigan state courts and ultimately to the Sixth Circuit. There, the table was set for the legal system to demonstrate its impartiality by ordering Benson to remove Kennedy’s name from the ballot.  Instead, the court did the opposite.

A Partial Court

The facts reveal that there was no logistical justification for Benson’s refusal to remove Kennedy’s name —  it wasn’t as though she didn’t have time to do so. Indeed, as the dissent reveals, Benson initially distributed ballots without Kennedy’s name after a lower court ruled against her. Moreover, the two Michigan statutes Benson cites in her opposition were of doubtful authority — certainly not sufficient to warrant throwing an entire national presidential election into chaos.

Since there was no justification for Benson’s conduct, the court resorted to legal sleight-of-hand.  The majority opinion, drafted by Judge Eric Clay and joined by far-left activist Judge Rachel Bloomekatz, resembles all modern legal opinions. It looks like a legal opinion that does what legal opinions are supposed to do: reason from first principles. 

But looks can be deceiving. 

In reality, the court reached its conclusion first and then backfilled it with “reasoning.” This is why the opinion is full of references to obscure legal principles such as res judicata, laches, and the Rooker-Feldman doctrine. The use of obscure principles to decide issues of tremendous national importance is the hallmark of a judge who made up his mind first and then groped around for legal justifications — the very opposite of what a judge is supposed to do.

If you haven’t heard of these legal principles, don’t worry. They are not the right legal tools for deciding important issues like, you know, who the president of the United States should be. Instead, they are intended to make it seem like the court’s order was the product of legal reasoning when in fact it was rank partisanship.

Weaponized Legal System

Meanwhile, the 11-page majority opinion never acknowledges the actual dispute: Kennedy wants Michigan’s voters to be able to vote for Trump, the candidate Kennedy endorsed. At the same time, Benson wants to deceive voters into thinking they can vote for Kennedy. Kennedy knows that if his name is removed, Michigan’s electoral votes could go to Trump, which could decide the national election. Benson also knows this and doesn’t like it. Again, this is the crux of the entire legal dispute, which is odd given that the court never alludes to it. 

A legal system that refuses to acknowledge plain facts is not capable of delivering honest truths. This is what it means to have a weaponized legal system. Everybody knows what’s happening here: the majesty of the law is providing cover for partisan politics.

These cynical attempts to subvert our legal order are both hypocritical and routine — rule for thee but not for me is the defining ethos of woke leftism. Thus it’s almost trite to observe that the outcome of this case would have been different had Kennedy endorsed Harris. Reasonable people know this. They also know that years of pointing out hypocrisy has revealed that leftist operatives are immune to these sorts of allegations. Their side never holds them to account. 

Even so, it is hypocritical that the bureaucrats who control Michigan’s election system want Kennedy’s name to remain on the ballot. It was, after all, only last year when their leftist counterparts in at least 37 states attempted to remove Trump from the ballot. In both cases, these types insist that they are saving “our democracy” by violating every one of its legal norms.

The most straightforward interpretation of Benson’s conduct is that she used the “color of law” (i.e., her legal authority) to disenfranchise voters who prefer Kennedy but would accept Trump. A Trump Department of Justice would be well-advised to scrutinize this conduct. 

At any rate, the Sixth Circuit’s opinion in Kennedy is rank partisan politics dressed up in legal nonsense. It mimics the form of legal reasoning without any of its substance. In a normal country, with properly functioning legal institutions and well-trained nonpartisan judges, the opinion would have consisted of one sentence: “Since Robert F. Kennedy is not running for president, his name shall not appear on the presidential ballot.” That’s what used to be known as legal reasoning.

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