DENVER– First, the Colorado Supreme Court ruled that the former president Donald Trump was not eligible to run for his former office in this state. Then Maine’s Democratic secretary of state ruled the same way for her state. Who’s next?
Both decisions are historic. The Colorado court was the first court to apply a rarely used constitutional ban against those who “engaged in insurrection” to a presidential candidate. Maine’s Secretary of State was the first to election official to unilaterally remove a presidential candidate from the ballot under this provision.
But both decisions are suspended while the legal proceedings take place.
That means Trump remains on the voting rolls in Colorado and Maine and his political fate is now in the hands of the U.S. Supreme Court. Maine’s decision will likely never take effect on its own. Its central impact is growing pressure on the nation’s highest court to come clean: Can Trump still run for president after the Jan. 6, 2021, attack on the U.S. Capitol?
After the Civil War, the United States ratified the 14th Amendment to guarantee the rights of former slaves and much more. It also included a two-sentence clause called Section 3, designed to prevent former Confederates from regaining power after the war.
The measure reads:
“No person shall be a Senator or Representative in Congress, or an elector of the President or Vice-President, or hold any civil or military office, in the United States or in any State, who, having previously taken the oath as 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, will have engaged in an insurrection or rebellion against the same, or given aid or comfort to his enemies. But Congress may, by a vote of two-thirds of each House, remove this handicap.
Congress effectively removed this disability for most Confederates in 1872, and this provision fell into disuse. But it was rediscovered after January 6.
Trump is already being prosecuted for trying to overturn his 2020 defeat that culminated on Jan. 6, but Section 3 does not require a criminal conviction to take effect. Dozens of lawsuits have been filed to disqualify Trump, claiming he engaged in insurrection on Jan. 6 and is no longer qualified to run for office.
All lawsuits failed until Colorado’s decision. And dozens of secretaries of state have been asked to remove it from the ballot. All said they did not have the authority to do so without a court order — until Maine Secretary of State Shenna Bellows’ decision.
The Supreme Court has never ruled on Section 3. It likely will when considering appeals of Colorado’s ruling — the state’s Republican Party has already appealed and Trump is expected to file his under little. Bellows’ decision cannot be appealed directly to the U.S. Supreme Court; it must first be appealed through the legal chain, starting in a Maine trial court.
Maine’s decision, however, forces the High Court’s hand. It was already highly likely that the justices would hear the Colorado case, but Maine removes all doubt.
Trump lost Colorado in 2020, and he doesn’t need to win it again to secure an Electoral College majority next year. But he won one of Maine’s four Electoral College votes in 2020 by winning the state’s 2nd Congressional District. Bellows’ decision would therefore have a direct impact on his chances next November.
Until the high court rules, any state could adopt its own standards for whether Trump, or anyone else, can appear on the ballot. This is the kind of legal chaos the court is supposed to prevent.
Trump’s lawyers have several arguments against attempts to disqualify him. First, it is not clear that Article 3 applies to the president – an early draft mentioned this office, but it was deleted, and the terms “an officer of the United States” elsewhere in the Constitution do not. do not designate the president, they say.
Second, even if it applies to the presidency, they say, it is a “political” question best decided by voters, not unelected judges. Third, if the judges want to get involved, lawyers argue, they are violating Trump’s rights to due process by ruling categorically that he is ineligible without some sort of investigative process like a lengthy criminal trial. Fourth, they argue, January 6 was not an insurrection within the meaning of Article 3 – rather, it was a riot. Finally, even if it was an insurrection, they say, Trump was not involved in it — he was simply using his right to free speech.
Of course, the lawyers who want to disqualify Trump also have arguments. The bottom line is that the case is actually very simple: January 6 was an insurrection, Trump incited it, and he is disqualified.
The attack happened three years ago, but the challenges weren’t “ripe,” to use the legal term, until Trump filed to participate in national elections this fall.
But the length of the delay also raises another problem: no one really wanted to comment on the merits of the case. Most judges have dismissed the lawsuits because of technical problems, including that courts do not have the authority to tell parties who should list on their primary ballots. Secretaries of state have also dodged, usually telling those who ask them to ban Trump that they do not have the authority to do so unless a court orders it.
No one can dodge anymore. Legal experts have warned that if the Supreme Court does not clearly resolve the issue, it could lead to chaos in November – or in January 2025, if Trump wins the election. Imagine, they say, if the high court sidesteps the issue or says it’s not a decision for the courts to make and Democrats win a slim majority in Congress. Would they seat Trump or declare him ineligible under Section 3?
Maine has an unusual process in which a secretary of state is required to hold a public hearing on challenges to politicians’ places on the ballot and then issue a decision. Several groups of Maine voters, including a bipartisan group of former state lawmakers, filed such a challenge, triggering Bellows’ decision.
Bellows is a Democrat, the former head of the Maine chapter of the American Civil Liberties Union, and has a long record of criticism of Trump on social media. Trump’s lawyers have asked him to recuse himself from the case, citing articles calling Jan. 6 an “insurrection” and lamenting Trump’s acquittal in his impeachment trial over the attack.
She declined, saying she did not rule based on personal opinions. But the precedent it sets is remarkable, critics say. In theory, election officials in each state could decide that a candidate is ineligible based on a new legal theory regarding Section 3 and terminate their candidacy.
Conservatives argue that Section 3 could apply to Vice President Kamala Harris, for example — it has been used to keep even those from office who have donated small amounts to individual Confederates. Couldn’t this be used against Harris, they say, because she raised money for people arrested during the unrest that followed the killing of George Floyd by Minneapolis police in 2020?
Well, of course yes. Bellows is a Democrat and all of the Colorado Supreme Court justices have been appointed by Democrats. Six of the nine justices of the United States Supreme Court were appointed by Republicans, three by Trump himself.
But courts don’t always divide along predictable partisan lines. Colorado’s decision was 4-3 — so three Democratic appointees disagreed with Trump’s ban. Several prominent legal conservatives have defended the use of Section 3 against the former president.
We will now see how the High Court handles this.
