Trump's last challenge of 2023: Will Maine become the second state to boot him off the ballot?

Augusta, Maine – Maine Secretary of State Secretary of State Shenna Bellows intends to announce her decision between the Christmas and New Year’s holidays as to whether former President Donald Trump is eligible for or disqualified from placement on Maine’s presidential primary ballot next year.

Bellows could become the nation’s first state election official to disqualify a candidate for federal office.

While Trump getting booted off the ballot in Colorado, a reliable blue state, would probably have no impact on the outcome of a presidential election, a Trump disqualification in purple Maine would more likely affect the Electoral College tally, were Trump the Republican nominee.

Colorado has evolved from being a swing state to voting Democratic in every presidential election since 2008 – for Barack Obama twice, for Hillary Clinton, and for Joe Biden – while its governor, both U.S. Senators and five of its eight U.S. House members are Democrats. Colorado’s 10 electoral votes seem to be a safe bet for a Democratic nominee.

Maine, on the other hand, splits its four electoral votes proportionally by congressional district, rather than winner-take-all. (Nebraska is the only other state to do this.) Though Trump lost statewide in 2016 and 2020, he captured one Maine electoral vote in both elections for carrying the more conservative 2^nd Congressional District covering northern Maine, and he would be favored to do so again in 2024, if he were on the ballot.  (Joe Biden and Hillary Clinton each won three electoral votes in Maine, one for carrying the 1^st Congressional District and two for winning statewide.)

Maine’s 2024 presidential primary is scheduled for March 5, the most crowded date on the election calendar, known as Super Tuesday, because 15 other states also plan to hold primaries and caucuses that day, including Colorado.

Secretary Bellows intended to announce her decision on December 22, one week after holding a public hearing on Trump’s ballot access, but she delayed it after the landmark Colorado decision on December 19 and invited both sides to submit supplemental briefs.

THE POWER TO DECIDE

In Maine, Colorado, and all states where challenges to Trump’s ballot access have been brought or are pending, the basis for disqualification is Section 3 of the 14^th Amendment of the U.S. Constitution, adopted after the Civil War, in 1868, which bars any previous state or federal office holder, who’d sworn an oath to the U.S. Constitution but “engaged in insurrection” against it, from holding office again.

The threshold question before Secretary Bellows is whether a state official has the legal authority to disqualify a candidate for federal office or whether only Congress or a court can?

The Maine challengers to Trump’s ballot access are five voters, including a bipartisan pair of former state legislators who were present for the hearing, Ethan Strimling, a Democrat who also served as Portland’s Mayor from 2015 to 2019, and Tom Saviello, a Republican from rural Wilton.

Strimling and Saviello, like challengers in other states, assert the defining moment barring Trump was the January 6, 2021, Capitol riot he incited as part of his plot to retain power by overturning the results of 2020 presidential election he lost to Joe Biden.

The riot, following months of Trump lies about a stolen election and dozens of lost lawsuits alleging election fraud, disrupted and delayed Congress’ certification of the Electoral College tally that officially deemed Biden the winner.   

“Look, Trump’s a traitor, and we shouldn’t allow traitors to run for President,” Strimling said in an interview. “We’re bringing this challenge forward, because I want to be on the side of history that said, ‘We did everything we could to make sure a wanna-be dictator doesn’t become President of the United States.’”

“Our country was in jeopardy at that point,” Saviello said in an interview, about January 6. “When they’re running around the hallways looking for [Vice President Mike] Pence to hang him, and [House Speaker Nancy] Pelosi.”

Saviello, who voted twice for Trump, continued, “I’m sorry, he’s not qualified to be President. He’s broken the Constitution and threatened the country I love.”

Leading Trump’s defense team in Maine is Scott Gessler, a lawyer and former Secretary of State in Colorado, where he led the Trump team opposing the Republican-led ballot challenge.

“We strongly contest the arguments that President Trump ever engaged in insurrection,” Gessler told Bellows during the public hearing.

During the all-day hearing, which lasted eight hours inside the largest committee room in the Maine State House, Bellows sat with two aides at the center dais, while the adversaries sat on opposite sides of a wooden horseshoe-shaped table.

Gessler disagreed that Trump’s speeches and tweets (shown during the hearing) on and before January 6 were an incitement to violence, in contrast to the House of Representatives’ vote to impeach Trump in January 2021 or the December 2022 report by the House Select Committee to Investigate the January 6^th Attack On The United States Capitol.

One fact both parties agreed on in the Maine hearing: There is no prior instance in U.S. history of a state election official disqualifying a candidate for federal office under Section 3 of the 14^th Amendment.

Until the Colorado Supreme Court decision to dump Trump, no state judge or judges had ever acted to remove a federal candidate from its ballot either.

“For good reason,” Gessler said at the Maine hearing. “States do not have jurisdiction.”

Gessler and co-counsel Gary Lawkowski argued to Bellows that only Congress is authorized to resolve such disputes.

“You could have 50 different standards. You could have 50 different outcomes. You could have cases where a presidential candidate is qualified in some states, not others, and that would be very bad for our democracy,” Lawkowski said. “If we were to determine that each Secretary of State were to evaluate contested qualifications on their own, you run the risk of chaos.”

Trump’s attorneys contended state election officials may consider only the three qualifications for president listed in Article 2 of the Constitution – being a 35-year-old natural-born citizen who has lived in the U.S. for at least 14 years.

Besides Trump, five other Republican presidential candidates, including Florida Governor Ron DeSantis and former South Carolina Governor Nikki Haley, qualified for the Maine primary ballot after submitting petitions by the Dec. 1 deadline with the required 2,000 signatures from registered Maine Republican voters. (Former New Jersey Governor Chris Christie fell short).

Mike Soboleski, a Republican State Representative running for the U.S. House in the 2^nd Congressional District, told the hearing, “To have struck Mr. Trump’s access to our presidential ballot is to blatantly disenfranchise the voters who signed those petitions” and would “deprive Maine Republicans of their choice.”

Only Biden and Minnesota Congressman Dean Phillips qualified for the Democratic ballot.

Heather Sprague, a Republican activist from the midcoast Maine town of Cushing, and a one-time state legislative candidate, sat in the front row of the gallery during the hearing, wearing a red “Trump for Maine” baseball cap.

She’s collected signatures for Trump to get on the ballot and does not believe he engaged in insurrection.  

Sprague said in an interview, “He hasn’t been formally charged. He hasn’t been found guilty. Therefore, I don’t see their argument as being valid. I am also here to protect my vote and my voice. I feel like that is being canceled out of spite or hate for Trump.”

The Senate impeachment trial for incitement of the Capitol riot fell short of the two-thirds majority required for a conviction, and Trump’s federal trial for election obstruction stemming from January 6th is months away.

“In the end, we the people are on trial here, basically because, I mean, they’re trying to take our votes away, tell us who we can and can’t vote for,” Sprague said. “That is not very democratic.”

Sprague would have no qualms voting for Trump again if he were convicted in any of his four pending criminal trials.

She said, “Even if he’s in jail, I will vote for him. I will work for him.”

HISTORY LESSON

The only witness called by the Trump ballot challengers in Maine was Indiana University Law School Professor Gerard Magliocca, who has taught Constitutional law and history for 22 years and also testified in the Colorado ballot challenge.

Magliocca told the Maine hearing, “Engage in insurrection means any voluntary act, by word or deed, that is in furtherance of an insurrection against the Constitution, including words of incitement.”

Magliocca, a scholar of the legislative history of the 14^th Amendment, said Section 3 did not apply automatically to all former Confederates, but only to those who had held an elective or appointed office that required an oath to the U.S. Constitution. 

That was “a major point of emphasis for ratifiers and drafters of the provision,” Magliocca said. “Only those who had taken an oath would be disqualified from office, because those who had taken an oath and broken it were the moral equivalent, in their eyes, of perjurers who could not be trusted with power, unless they could get some official forgiveness or clemency.”

Magliocca disagreed with a Trump defense argument that the presidency is not an applicable “office” and the president is not an “officer” of the United States subject to disqualification by Section 3.

“Office included the presidency,” Magliocca said. “Nobody said the presidency was excluded.”

The professor pointed to the Senate floor debate, when one senator asked why the presidency and vice presidency were not listed. The response came from Senator Lot Morrill, of Maine, who had been Maine’s governor at the outbreak of the Civil War and replaced Senator Hannibal Hamlin when he became Abraham Lincoln’s first vice president.

“It is covered. Look at the words ‘any office,’” Morrill replied, according to Magliocca.

Section 3 of the 14^th Amendment:

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 Congress may by a vote of two-thirds of each House, remove such disability.

Magliocca added that it was widely understood at the time that former Confederacy President Jefferson Davis and other leading rebels were disqualified from being president or vice president unless Congress were to grant them amnesty. 

Representative James Blaine, of Maine, a future presidential candidate himself, reaffirmed that in 1876, during debate over a bill to expand amnesty for former Confederates.

On the House floor, Blaine said, “‘I’m objecting to giving him amnesty, because if you do that, that’ll make him eligible to become President,’” Magliocca recounted. “Now, this speech was big national news. It was widely reprinted and commented on in newspapers.”

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President Andrew Johnson, president at the time the 14^th Amendment was ratified, referred to himself as the ”chief civil executive officer of the United States,” Magliocca said, adding, calling the president an officer of the U.S. “was common parlance at the time of Reconstruction.” 

The Colorado Supreme Court noted in its Trump ballot access decision that the U.S. Constitution refers to the presidency as an “office" 25 times.

IN THE SPOTLIGHT

Beyond the 14th Amendment, the parties disagree on whether Maine law allows the Secretary of State to remove Trump. The challengers, quoting one of the two statutes governing ballot petition review, argue the petition unambiguously requires “a statement that the candidate meets the qualifications of the office the candidate seeks,” and that Trump’s declaration is false. But Trump’s lawyers counter-argue, he does meet the qualifications listed on Maine’s candidate consent form and defined by Article 2 (age, citizenship, residency) of the U.S. Constitution.

Now the spotlight is on Bellows, 48, a Democrat, the first woman to serve as Maine’s Secretary of State, elected by the Democratic-controlled State Legislature, in 2020. Bellows previously served four years as a state senator after losing a 2014 U.S. Senate run against incumbent Republican Susan Collins.

As Secretary of State, Bellows has been an advocate for voting rights and election security, pushing for the passage of new laws to protect poll workers and election officials from threats and to secure voting machines. She has kept Maine affiliated with the Electronic Registration Information Center (ERIC), a national organization established to improve the accuracy of voter registration rolls.

Bellows might find validation for disqualifying Trump in the Colorado decision, or she could dismiss the challenges on procedural grounds, like her counterparts in New Hampshire and Oregon, or courts in Michigan and Minnesota. All found they did not have the authority to bar Trump from the ballot.

Either way, the parties can appeal her forthcoming decision to the Maine Superior Court.

Toward the end of the hearing, Bellows asked the lead attorney for the challengers, Jamie Kilbreth, if Section 3 of the 14th Amendment explicitly prohibits placing someone who engaged in insurrection against the Constitution on a presidential primary ballot.

“If you read it any other way,” Kilbreth said. “You encourage people to vote for a candidate who cannot hold the office. That just creates a kind of chaos that everybody would like to avoid. I think voters are entitled to know, when they vote, whether the candidate they vote for is actually eligible.”

“The engagement in an insurrection or rebellion,” Bellows replied, “that requires a determination of some sort with due process rights for the defendant, no?”

Kilbreth agreed it required a determination unlike confirming age, citizenship, and residency.

“The fact that it’s, you know, more complicated, and it’s harder, and you know, there are political cross currents doesn’t mean that you shouldn’t make the decision. Nobody wants to make the decision. That’s quite clear. It’s a tough decision, but it’s one, we think, is charged to you.”