A decision by Maine’s secretary of state to prevent former president Donald Trump from appearing on the state’s presidential election ballot will now probably end up before the US supreme court. Maine’s move follows a similar decision in Colorado this month.
There is mounting pressure on the conservative-leaning judicial body to swiftly rule on Maine and Colorado’s application of section 3 of the 14th amendment prohibiting anyone who “engaged in insurrection” from holding office. But neither decision will be the last ballot eruption in an already convulsive election which is likely to see a rematch of Trump versus Joe Biden.
Lawsuits seeking to remove Trump from the ballot have been filed in about 30 states but more than half have already been dismissed, including in California where this week the secretary of state, Shirley Weber, decided to keep Trump on the certified list of candidates for the state’s 5 March primary, and in Michigan.
There are now active lawsuits in 14 states, including Alaska, Arizona, Nevada, New Jersey, New Mexico, New York, Oregon, South Carolina, Texas, Vermont, Virginia, West Virginia, Wisconsin and Wyoming, seeking to remove Trump ahead of their primaries citing the same constitutional clause.
The 14th amendment, ratified three years after the conclusion of the civil war in 1865, covered a range of issues, including guaranteeing rights to former slaves and a provision to disbar anyone who had taken the oath of office to uphold the constitution who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”.
Like other civil war-era laws that have been utilized to try to contain political extremism – including a failed attempt to prosecute the leaders of a 2017 neo-Nazi Unite the Right torchlight rally under a federal civil statute known as the KKK Act – the section 3 clause was only rediscovered after January 6 riot at the US Capitol.
Technically, section 3 doesn’t require a criminal conviction to take effect.
Nor is it clear if section 3 applies to the presidency. An early draft mentioned the office, but the final draft did not. If it does apply to the presidency, Trump’s lawyers will argue that it is a political question that should be decided by voters and any effort by judges to get involved is a denial of the candidate’s right to fair legal procedure because it was made without the benefit of a public trial.
They may also argue that January 6 was not an insurrection but more akin to a riot that Trump was not himself involved in and that he wasusing his rights of free speech when he cajoled the crowd: “We fight like hell. And if you don’t fight like hell, you’re not going to have a country any more.”
In Maine, the secretary of state, Democrat Shenna Bellows, broke ranks with other similarly positioned officials in other states. In her decision, she cited the Colorado supreme court ruling that the January 6 attack “was violent enough, potent enough, and long enough to constitute an insurrection”.
In her ruling, Bellows said that Trump had “used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power” and that he “was aware of the likelihood for violence and at least initially supported its use given he both encouraged it with incendiary rhetoric and took no timely action to stop it”.
The Maine decision was immediately appealed by the state’s Republican party and must first travel through the state’s court system before it can reach the US supreme court.
But both Colorado and Maine are small players in the electoral college system that decides presidential elections. In Maine, Democrats won in in 2016 and 2020 but Trump won one of four electoral votes under an unusual system that allows the state to split its four votes proportionally. In Colorado, Trump failed to win its nine votes in both elections.
Across the political spectrum, private lawsuits aimed at getting Trump off the ballot are being treated as funky, freelance efforts by elected politicians.
The California governor, Gavin Newsom, said Trump should be beaten in the polls and warned that while the former president was a “threat to our liberties” the lawsuits and back-and-forth ballot rulings were a “political distraction”.
After Maine’s decision on Thursday, the Republican senator Susan Collins said voters in her state should decide who wins the election – “not a secretary of state chosen by the legislature”, adding that the decision would “deny thousands of Mainers the opportunity to vote for the candidate of their choice, and it should be overturned”.
The Associated Press contributed reporting