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Decision to keep Trump off primary ballot lands Maine in center of national legal fight

Former President Donald Trump greets supporters as he arrives at a commit to caucus rally, Tuesday, Dec. 19, 2023, in Waterloo, Iowa.
Charlie Neibergall
Former President Donald Trump greets supporters as he arrives at a commit to caucus rally, Tuesday, Dec. 19, 2023, in Waterloo, Iowa.

Maine’s presidential primary is still three months away. But Secretary of State Shenna Bellows’ decision on Thursday to remove Donald Trump from the primary ballot has landed Maine in the center of the national legal fight — and media frenzy — over the former president’s eligibility for office.

It’s an unprecedented question, focused on whether Trump’s actions and inflammatory rhetoric leading up to the Jan. 6, 2021, attacks on the U.S. Capitol — and his perceived inaction as rioters battled police and disrupted Congress — constitute engaging in an insurrection against the government.

After two weeks of deliberation, Bellows ruled that the Jan. 6 riots “occurred at the behest of, and with the knowledge and support of, the outgoing president.” Bellows reached that conclusion based, in part, on evidence gathered during the controversial congressional investigation into Jan. 6, 2021.

In so doing, Maine joined Colorado as the only two states (so far) to bar Trump from the ballot based on the a post-Civil War constitutional amendment originally aimed at preventing Confederates officials from taking office.

“I am mindful that no Secretary of State has ever deprived a presidential candidate of ballot access based on Section Three of the 14th Amendment,” Bellows wrote in her 34-page ruling. “I am also mindful, however, that no presidential candidate has ever before engaged in insurrection.”

Republicans vow to fight

Maine’s presidential primary drama was literally front-page news on Friday in print editions of The New York Times, The Washington Post and the Los Angeles Times. It was also a top story on CNN, NPR, Fox News and other broadcasters.

The reaction from Republicans in Maine and nationwide was predictably fierce.

“Friends, the enemy is at the gates,” wrote Maine Republican Chairman Joel Stetkis, adding in his email to supporters and potential donors that “Maine democracy is under attack.”

Stetkis also vowed to fight the issue “all the way to the Supreme Court if necessary.”

“And we reserve our right as a private organization to use a caucus system if that's what it takes to keep a Democrat Hack Secretary of State from infringing on the Rights of Maine voters,” Stetkis wrote before asking recipients to donate to the party.

Many of the attacks focused on Bellows, a former Democratic state senator from Manchester who formerly headed the ACLU of Maine. Bellows was elected to her current post by the Democratic-controlled Legislature. Republicans pointed to Bellows’ posing with Biden in a recent picture.

“The Secretary of State has jumped in way over her boots,” said Rep. Billy Bob Faulkingham, the House Republican minority leader. “It’s not based in law. It’s an incredible overreach of her office. And it won’t hold up. America’s not that far gone that political hacks have the ability (to take) their opponents off the ballot.”

Faulkingham confirmed that Republicans began drawing up impeachment papers against Bellows for consideration when the Legislature returns next week.

That effort is likely doomed given the Democratic majorities in both chambers. But it could cast a partisan pall over the Legislature as it begins its work for the year.

Even several of Trump’s primary opponents who stand to benefit by the clear frontrunner being held off the ballot criticized the decision.

“Well, the idea that one bureaucrat in an executive position can simply unilaterally disqualify someone from office, that turns on its head every notion of constitutional due process that this country has always abided by for over 200 years,” Ron Desantis said on Fox News. “It opens up Pandora's Box.”

Vivek Ramaswamy called the decision “unconstitutional” and “anti-American,” repeating his pledge to remove his name from any ballot where Trump has been removed.

But Tom Saviello, a former Republican state senator from Wilton who was among the group challenging Trump’s eligibility, criticized his party colleagues for their rhetoric. Saviello said Bellows was only carrying out her obligation, under the law, to review any challenges to candidates.

“If you’re going to attack something, attack the opinion,” Saviello told Maine Public. “Don’t attack the woman that made the decision, and that’s what I find most discouraging at the state Republican level, the House level particularly, and at the Washington level or his campaign. They attacked Shenna Bellows.”

Maine’s delegation splits on ruling

The only member of Maine’s congressional delegation to signal support for Bellows’ decision was Democratic U.S. Rep. Chellie Pingree of Maine's 1st District, who tweeted that “it appears that Trump’s actions are prohibited by the Constitution.”

But Democratic U.S. Rep. Jared Golden, who voted to impeach Trump over Jan. 6 despite his 2nd District supporting Trump in both 2016 and 2000, disagreed with the ruling.

“I do not believe he should be re-elected as President of the United States,” Golden said in a tweet. “However, we are a nation of laws, therefore until he is actually found guilty of a crime of insurrection, he should be allowed on the ballot.”

Both Republican U.S. Sen. Susan Collins and independent U.S. Sen. Angus King struck similar tones about allowing voters to decide, with Collins adding that Bellows’ decision “should be overturned.”

So what happens now?

Maine is just one front in this battle over Trump’s eligibility.

Bellows issued her ruling nine days after Colorado’s Supreme Court disqualified Trump from that state’s primary ballot for the same reasons. In fact, Bellows referred to the Colorado decision throughout her ruling, pointing out that much of the same evidence was filed by the opposing factions in both states.

The Colorado case appears fast-tracked for the U.S. Supreme Court.

The Colorado Republican Party has already filed an appeal and Trump’s campaign has vowed to do the same. The next step in the Maine case is an appeal to the state Superior Court. Both the Trump campaign and the Maine GOP have vowed to appeal, which must happen by Friday, Jan. 5.

It’s unclear how the nation’s highest court will handle the case or when it might take it up. Maine and Colorado will hold their presidential primaries on March 5 as part of the “Super Tuesday” primaries and caucuses in 16 states. Lawsuits challenging Trump’s eligibility are also still pending in about a dozen other states, including New York, Virginia, Arizona and Texas.

Parties on all sides are hoping the high court will act quickly, however.

“The Maine secretary of state’s decision is not the final word on this matter, and voters need clarity from the courts,” the national and Maine chapters of the League of Women Voters said in joint statement. “We hope the (Supreme) Court will issue a swift and definitive decision that provides clarity for voters during the upcoming presidential primary election season.”

Anyone’s guess on outcome

This issue has always seemed destined for the nation’s highest court given the novel and unlitigated constitutional arguments.

Specifically, the Section 3 of the 14th Amendment reads:

“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 constitutional scholars began arguing long before any challenges were filed against Trump’s candidacy whether that section should apply to Trump. Those debates over what constitutes an insurrection and whether that section applies to presidents have only intensified as the current cases play out.

Conservatives now hold a 6-3 advantage on the Supreme Court due, in no small part, to the three conservative justices that Trump appointed during his presidency.

“Politics are always in the background of these cases but it’s a hard and complicated issue,” said Dmitry Bam, who teaches constitutional law at the University of Maine School of Law. “Fairly conservative law professors have come out the same way that Trump is not eligible ... so it’ll be interesting to see how the court will approach the legal issues here.”

Bam said he hopes that the court will rule on the “hard issues” like what is an insurrection and whether engaging in an insurrection can be based on speech alone.

“The Colorado case is well-reasoned but there are ways to challenge that decision,” Bam said. “And if I was betting, I suspect that the Supreme Court will come out the other way and say that Trump is eligible. I just don’t know what grounds it will use.”

Maine's Political Pulse was written this week by State House correspondent Kevin Miller, and produced by digital editor Andrew Catalina. Read past editions or listen to the Political Pulse podcast at mainepublic.org/pulse.