Will a Supreme Court decision settle Trump’s eligibility in Maine? Maybe, but more likely not.
Dmitry Bam, vice dean and provost of UMaine Law School, discusses the possible ways the Colorado case could be decided
Many of the same questions debated in Augusta in December filled the U.S. Supreme Court in Washington D.C. on Thursday, where the Justices heard arguments in a Colorado case regarding whether former President Donald Trump is ineligible to run for president again.
Some Justices focused on the narrow provisions that Trump’s counsel has repeatedly used in their defense, such as questioning whether the presidency is included in the “insurrection clause” of the U.S. Constitution under which challenges to Trump’s ballot eligibility have been brought. Less common in the courtroom Thursday were questions about what sparked the challenges in the first place, whether Trump engaged in insurrection.
The throughline of the questioning appeared to be an underlying policy concern about giving any one state power to dictate a national election, said Dmitry Bam, vice dean and provost of University of Maine Law School.
“I think overall, they’re all skeptical of an individual state, whether it’s an individual state officer like Maine (Secretary of State Shenna Bellows) or an individual state Supreme Court, to make this kind of a decision to take a national candidate off the ballot,” Bam said.
As the country awaits the high court’s decision, Maine Morning Star spoke with Bam, who specializes in constitutional law, about some of the potential ways the Justices could rule — and what that could mean for the pending proceedings in Maine.
Both Maine and Colorado disqualified Trump from their presidential primary ballots under the “insurrection clause,” Section 3 of the 14th Amendment of the U.S. Constitution, because of his involvement in the Jan. 6 attack on the U.S. Capitol. The courts made this decision in Colorado and Bellows, a Democrat, came to the same conclusion in Maine.
Maine law requires the Secretary of State to rule on ballot challenges ahead of the justice system, but the challenges have since been taken to the courts with a series of appeals from both Trump and Bellows. However, Maine courts have declined to weigh in ahead of the Supreme Court decision. In the meantime, Trump will remain on Maine’s presidential primary ballot and absentee voting is already underway.
Will a Supreme Court decision settle Trump’s eligibility in Maine? Maybe.
Within the overarching question of whether Colorado erred in kicking Trump off its presidential primary ballot, there are numerous lines of reasoning the Supreme Court could take, Bam said. And, how the court decides to argue its case will matter for the proceedings in Maine.
Some decisions could essentially solve the case for all states. For example, the Justices could rule that Trump did not engage in insurrection. The court could also rule that Section 3 does not apply to the presidency, also a fairly clear cut decision.
Supreme Court Justice Ketanji Brown Jackson, much to the apparent surprise of Trump’s counsel and scholars, seemed to view the latter as a possible justification for a ruling in Trump’s favor.
Jackson keyed in on the question of whether the presidency is considered an office under Section 3 of the 14th Amendment. Trump’s counsel has claimed in the Maine and Colorado proceedings that it is not.
“They were listing people that were barred and ‘president’ is not there,” Jackson said, referring to the text of the section, which lists several specific positions such as Senator or Representative in Congress. “I guess that just makes me worry that maybe they weren’t focused on the president.”
More likely, not.
Overall, the line of questioning on Thursday from liberal and conservative Justices alike makes any number of these “clean” decisions seem unlikely, Bam said, citing the overall sense of concern among the Justices about the implications of ruling against Trump.
Several Justices asked the plaintiffs’ lawyer about what would stop other states from using Section 3 to kick candidates they don’t like from their ballots. Justice Elena Kagan posed a question along that vein, “Why should a single state have the ability to make this determination not only for their own citizens, but for the rest of the nation?”
These concerns could manifest in a decision that puts Section 3 in a separate category from the other requirements for the presidency, Bam said, which is a defense Trump’s counsel had used during the hearing in Maine.
Last December, counsel for Trump cross examined plaintiffs in Maine with the line of questioning: Do you believe Trump is a natural born U.S. citizen? Do you believe he has been a resident of the United States for the past 14 years? Do you believe he’s at least 35 years of age? Those three qualifications are the only qualifications that the state must consider in deciding whether Trump can be on the ballot, his counsel argued.
“So maybe being at least 35, being a natural born citizen, those are more objective factors that we’re okay with states deciding,” Bam said of a possible decision form the court, whereas the could be more skeptical of delegating state jurisdiction to the more open ended question of what lawmakers intended for a Reconstruction Era amendment.
“I think the court is really nervous about what it would mean to open that door on a state-by-state basis,” Bam said.
While this hesitancy was apparent on Thursday, articulating it in an opinion could come in any number of ways.
The court could punt the question of Trump’s eligibility to Congress by ruling that Section 3 is not self-executing, meaning it cannot be enforced without a conviction or action by Congress. Challengers to Trump’s eligibility and the scholars behind the 14th Amendment legal theory have argued that the section is self-executing.
The court could conclude that it’s premature to decide Trump’s presidential eligibility by ruling that he can run for office, without deciding whether he is actually eligible to hold office again. That opens the door to later challenges if Trump wins.
“Those potentially just delay the decision,” Bam said, and are only a few examples of the multitude of ways the court could rule.
“There’s so many legal hurdles that as long as Trump wins any one of them he basically wins the case and he gets to stay on the ballot,” Bam said. “So, I think that’s the likely resolution here. It’s just a question of how he wins and what the implications are for the future.”
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