Trump appeals Maine ruling barring him from ballot under the Constitution’s insurrection clause, expected to appeal Colorado ban

· Jan. 2, 2024, 8:22 pm
Donald TrumpDonald TrumpAP
Republican presidential candidate former President Donald Trump gestures as he prepares to depart Manchester-Boston Regional Airport, Monday Oct. 23, 2023, in Londonderry, N.H. (AP Photo/Charles Krupa)

By Nicholas Riccardi and David Sharp/AP

Former President Donald Trump on Tuesday appealed a ruling by Maine’s secretary of state barring him from the state's primary ballot over his role in the Jan. 6, 2021, attack on the U.S. Capitol.

Trump, the early front-runner for the 2024 Republican presidential nomination, appealed the Maine decision by Democrat Shenna Bellows, who became the first secretary of state in history to bar someone from running for the presidency under the rarely used Section 3 of the 14th Amendment. That provision prohibits those who “engaged in insurrection” from holding office.

The former president is expected to soon appeal a similar ban by the Colorado Supreme Court. That appeal would go to the U.S. Supreme Court, while Bellows' action is being appealed to a Maine Superior Court.

Trump’s appeal on Tuesday asks that Bellows be required to place him on the March 5 primary ballot. The appeal argues that she abused her discretion and relied on “untrustworthy evidence.”

“The secretary should have recused herself due to her bias against President Trump, as demonstrated by a documented history of prior statements prejudging the issue presented,” Trump’s attorneys wrote.

Bellows reiterated to The Associated Press on Tuesday that her ruling was on pause pending the outcome of the appeal, which had been expected.

“This is part of the process. I have confidence in my decision and confidence in the rule of law. This is Maine’s process and it’s really important that first and foremost every single one of us who serves in government uphold the Constitution and the laws of the state,” she said.

Trump’s critics have filed dozens of lawsuits seeking to disqualify him in multiple states.

None succeeded until a slim majority of Colorado’s seven justices — all of whom were appointed by Democratic governors — ruled against Trump last month. The Colorado court’s 4-3 decision was the first time in history the provision was used to bar a presidential contender from the ballot.

Trump lost Colorado in 2020, and he doesn’t need to win it again to garner an Electoral College majority next year. But he earned one of Maine’s four Electoral College votes in 2020 by winning the state’s 2nd Congressional District, so Bellows’ decision could have an impact next November.

Critics warned that it was an overreach and that the court could not simply declare that the Jan. 6 attack was an “insurrection” without a more established judicial process.

A week after Colorado’s ruling, Bellows issued her own. Critics warned it was even more perilous because it could pave the way for partisan election officials to simply disqualify candidates they oppose. Bellows, a former head of Maine’s branch of the American Civil Liberties Union, has previously criticized Trump and his behavior on Jan. 6.

The Constitution's Section 3 has been barely used since the years after the Civil War, when it kept defeated Confederates from returning to their former government positions. The two-sentence clause says that anyone who swore an oath to “support” the Constitution and then engaged in insurrection cannot hold office unless a two-thirds vote of Congress allows it.

Trump’s lawyers argue the provision isn’t intended to apply to the president, contending that the oath for the top office in the land isn’t to “support” the Constitution but instead to “preserve, protect and defend” it. They also argue that the presidency isn’t explicitly mentioned in the amendment, only any “officer of the United States” — a legal term they contend doesn’t apply to the president.

Trump made the opposite argument defending against his prosecution for fraud by the Manhattan District Attorney's office, contending the case should move to federal court because the president is “an officer of the United States.” The prosecutors argued that language only applies to presidential appointees — Trump's position here.

The contention that Section 3 doesn't apply to the president drew a scathing response from the Colorado Supreme Court last month.

“President Trump asks us to hold that Section 3 disqualifies every oathbreaking insurrectionist except the most powerful one and that it bars oathbreakers from virtually every office, both state and federal, except the highest one in the land,” the court’s majority opinion said. “Both results are inconsistent with the plain language and history of Section 3.”

As for history, Congress granted amnesty to most former Confederates in 1872, and Section 3 fell into disuse. Legal scholars believe its only application in the 20th century was being cited by Congress in 1919 to block the seating of a socialist who opposed U.S. involvement in World War I and was elected to the House of Representatives.

But it returned to use after Jan. 6, 2021. In 2022, a judge used it to remove a rural New Mexico county commissioner from office after he was convicted of a misdemeanor for entering the U.S. Capitol on Jan. 6. Liberal groups sued to block Republican Reps. Madison Cawthorn and Marjorie Taylor Greene from running for reelection because of their roles on that day. Cawthorn’s case became moot when he lost his primary in 2022, and a judge ruled to keep Greene on the ballot.

Some conservatives warn that, if Trump is removed, political groups will routinely use Section 3 against opponents in unexpected ways. They have suggested it could be used to remove Vice President Kamala Harris, for example, because she raised bail money for people arrested after George Floyd’s murder at the hands of Minneapolis police in 2020.

Trump and his allies have attacked the cases against him as “anti-democratic” and sought to tie them to President Joe Biden because the Colorado case and some others are funded by liberal groups who share prominent donors with the Democratic president. But Biden’s administration has noted that the president has no role in the litigation.

Those who support using the provision against Trump counter that the Jan. 6 attack was unprecedented in American history and that there will be few cases so ripe for Section 3. If the high court lets Trump stay on the ballot, they’ve contended, it will be another example of the former president bending the legal system to excuse his extreme behavior.

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