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Trump back on Maine ballots (for now), Democrats look to enshrine abortion rights in constitution

Republican presidential candidate former President Donald Trump speaks at a campaign event in Portsmouth, N.H., Wednesday, Jan. 17, 2024.
Matt Rourke
Republican presidential candidate former President Donald Trump speaks at a campaign event in Portsmouth, N.H., Wednesday, Jan. 17, 2024.

A Superior Court judge handed a partial victory to Donald Trump’s campaign this week when she opted not to choose a side in the pitched battle over whether Trump should be disqualified from office because of his role in inciting the riots in the U.S. Capitol on Jan. 6, 2021.

The judge’s decision made it all the more likely that Trump will at least have his name on Maine’s primary on March 5, although it’ll be more than a month before Mainers learn whether votes for the former president will count in the state and national GOP nominating contests.

Secretary of State Shenna Bellows appealed that decision to Maine’s Supreme Judicial Court on Friday. With her appeal, Bellows ensured the local debate over Trump’s eligibility will continue as the U.S. Supreme Court prepares to take up a nearly identical case from Colorado.

Invoking the judicial equivalent of “return to sender,” Superior Court Justice Michaela Murphy had remanded Trump’s ballot access case back to Bellows with instructions that the Democratic election official revisit her decision based on whatever the U.S. Supreme Court decides. Bellows’ appeal keeps the state process going in a parallel lane to the Colorado case.

There’s a lot going on here. So in this edition of the Political Pulse, we are going to explore Murphy’s decision and Bellows’ appeal a bit deeper as well as what would-be voters can expect as Maine approaches the March 5 primary.

What does all of this mean for the paper ballot?

Maine’s primary ballots have already been printed – or at least some of them. They had to be because Saturday, Jan. 20, is the deadline for Maine to mail ballots to active duty military personnel and other Maine residents living overseas.

Murphy’s decision all but ensures that those ballots, as well as the version that in-person or absentee voters receive, will include Trump’s name regardless of what the conservative-leaning Supreme Court decides in the Colorado case, Anderson v. Griswold. And the appeal filed Friday by Bellows doesn’t change anything in that regard.

That’s because, under state law, the secretary of state “is not required” to remove the name of a candidate from a ballot if the person dies or is disqualified less than 70 days before the primary election.

That language leaves open the possibility that Bellows could opt to remove Trump’s name if the Supreme Court disqualifies him under the insurrection clause. Practically speaking, however, that scenario appears extremely unlikely.

The Supreme Court won’t hear oral arguments until Feb. 8, which is less than a month before primary voters in Maine and more than a dozen other states head to the polls on Super Tuesday. And it takes weeks for the state to order, print and ship new ballots to towns across the state.

Instead, the secretary of state’s office would distribute notices to local election officials informing voters that Trump was disqualified and that a vote for him “will not be counted.” The law requires those notices to be posted at the polling place and inside each voting booth as well as be sent alongside the absentee ballots.

This has happened before, albeit not at this level. Candidates sometimes die or withdraw before an election. And in 2018, U.S. Senate candidate Max Linn was disqualified less than two months before the Republican primary, triggering a “will not be counted” posting inside voting booths.

But no matter what happens with Trump, Maine’s Republican primary ballot will already feature names of other candidates who are no longer in the running. Businessman Vivek Ramaswamy qualified for Maine’s primary but dropped out of the race this week after finishing fourth in the Iowa caucuses. There could be additional withdrawals after the New Hampshire, South Carolina and Nevada primaries.

Why did the judge sidestep the central, constitutional questions?

Murphy wrote that Trump’s appeals filed in Maine and Washington, D.C., “raise many important – and purely legal – issues of federal law” that are best handled by the Supreme Court.

“Put simply, the United States Supreme Court’s acceptance of the Colorado case changes everything about the order in which these issues should be decided, and by which court,” Murphy wrote. “And while it is impossible to know what the Supreme Court will decide, hopefully it will at least clarify what role, if any, state decision-makers, including secretaries of state and state judicial officers, play” in deciding the constitutional issues at the heart of the Trump case.

By delaying the Trump case in Maine, Murphy said she aims to minimize “any potentially destabilizing effect” caused by conflicting decisions weeks before the primary.

So if everyone is waiting on the U.S. Supreme Court, why did Bellows appeal?

Timing appears to be a big factor.

Bellows didn’t comment Friday on the appeal aside from a short statement welcoming the U.S. Supreme Court’s eventual guidance.

“I know both the constitutional and state authority questions are of grave concern to many,” Bellows said. “This appeal ensures that Maine’s highest court has the opportunity to weigh in now, before ballots are counted, promoting trust in our free, safe and secure elections.”

Legal briefs on the appeal probably won’t be filed until next week. But there are questions about how the timeline of the Supreme Court’s review of Colorado meshes (or doesn’t mesh) with Maine’s own case given that the primary is less than seven weeks away.

Murphy directed Bellows to revisit her decision on Trump’s eligibility based on the ruling in the Colorado case. But there are concerns that whatever Bellows decides can then be appealed again to Maine’s Superior Court, starting the entire state-level review process anew.

Under Maine law, the Superior Court has up to 20 days to issue a decision on challenges to a primary candidate’s eligibility. The Maine Supreme Judicial Court then has another 14 days to rule on any subsequent appeal to them, meaning the entire process could take up to five weeks (although it doesn’t prohibit a more expedited schedule).

If the U.S. Supreme Court turned around their ruling on the Colorado case within a week of oral arguments, so on Feb. 15, that is only 19 days before Maine’s primary.

By appealing the Superior Court ruling, Bellows is keeping that clock ticking and getting the case into the hands of the state Supreme Court before the Colorado case.

What happens now?

Parties have four days from Friday to file briefs and appendices with the Maine Supreme Judicial Court in support or opposition to the appeal from Bellows. The law states that “the court shall immediately consider the case” and must issue a decision within 14 days of the Superior Court decision, which appears to be Jan. 31 in this case.

Murphy did not hold oral arguments in public before issuing her Jan. 17 ruling and the law makes no specific mention of requiring the Law Court to hold oral arguments.

Meanwhile, the U.S. Supreme Court has scheduled oral arguments in the Colorado case for Feb. 8. Trump’s attorneys filed their legal briefs on Thursday and other groups, including the Maine Republican Party, are chiming in as well.

The question now is how deeply the Supreme Court will delve into these constitutional issues – such as whether the insurrection clause applies to presidents – and whether any ruling will apply broadly to cases in Maine and other states.

Dems seek to enshrine right to abortion

Abortion rights have become a significant issue in elections ever since the U.S. Supreme Court in 2022 struck down a landmark ruling that prohibited states from banning the procedure. And while the upcoming legislative election isn’t the stated goal behind a bill aimed at enshrining abortion access in the Maine Constitution, it could be used for that purpose.

On Monday the Legislature’s Judiciary Committee will hold a public hearing on the proposal, which would embed in the state constitution language stating that “every person has a right to personal reproductive autonomy.” The bill was introduced last year, but Democrats, who control the Legislature, carried it over to the current session.

Passing constitutional amendments is a tall task. While Maine voters ultimately must approve constitutional changes, the Legislature must first pass such amendments by a two-thirds vote in the House and Senate. So far, there’s little indication that enough Maine Republicans will join the Democratic majorities to advance the abortion amendment. Nevertheless, those who oppose the bill will be on the record for doing so.

Protection for abortion rights is a popular position in Maine and nationally. A Wall Street Journal poll released in November found that support for abortion access is at a near record since researchers have been tracking the issue in the 1970s.

Demonstrators opposed to a bill to expand abortion access gather in the halls of the Maine State House on Tuesday, June 27, 2023, in Augusta, Maine. The Maine Senate voted to expand abortion access Tuesday following an emotional debate, advancing a proposal that would give the state one of the least restrictive abortion laws in the country.
David Sharp
AP file
Demonstrators opposed to a bill to expand abortion access gather in the halls of the Maine State House on Tuesday, June 27, 2023, in Augusta, Maine.

Beyond its utility as an election tool, there’s also a practical reason that Democrats and abortion rights activists want L.D. 780 on the books. When the high court repealed Roe v. Wade, they effectively put the issue of abortion in the hands of state legislatures and governors. The result has been a Balkanization of state abortion laws as some Republican-led states enact outright and partial bans, while Democratic-led states protect or loosen access to the procedure.

Planned Parenthood, which has backed abortion-friendly candidates, said in a recent statement that L.D. 780 is designed to protect access from anti-abortion forces should they gain control of the legislature or the governor’s office.

“Maine has strong laws protecting comprehensive sexual and reproductive health care, but laws are subject to the whims of politicians,” said Lisa Margulies, Planned Parenthood Maine Action Fund, the political arm of its parent organization. “Voters deserve to have their voices heard on this issue, and, with L.D. 780, lawmakers have an obligation to all Mainers to pass this bill and let the people of Maine weigh in.”

Planned Parenthood is expected to turn out activists for Monday’s public hearing. The Christian Civic League of Maine is also mobilizing its members to oppose the bill. However, it’s unclear whether the bill will yield the same massive turnout as a proposal to allow abortions later in a pregnancy did during last year’s session.

The public hearing begins at 10 a.m. Watch or listen to it here.

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

Journalist Steve Mistler is Maine Public’s chief politics and government correspondent. He is based at the State House.