Trump ballot questions: Colorado GOP goes to SCOTUS, Maine SOS rules Trump ineligible

Voters behind the Colorado ballot challenge won't oppose high court review. Maine's secretary of state issues a second ruling that Trump is ineligible.

On Wednesday, Colorado Republicans went to the U.S. Supreme Court to ask the justices to, in effect, keep Donald Trump on the Republican Party’s primary ballot in the state — by way of reversing the Colorado Supreme Court’s groundbreaking decision that the Fourteenth Amendment bars Trump from being president.

The Colorado Supreme Court ruled on Dec. 20 that Trump “is disqualified” from being president because he engaged in insurrection in violation of Section 3 of the Fourteenth Amendment and cannot be on the 2024 Republican presidential primary ballot in Colorado as a result.

[Update, 8:00 p.m.: U.S. Supreme Court review was made all but certain on Thursday evening, given a new ruling from Maine Secretary of State Shenna Bellows, a Democrat, that Trump is constitutionally ineligible for 2024 primary ballot. An appeal of her ruling to Maine’s courts is allowed, and Bellows has put her ruling on hold until the Supreme Court rules on a relevant case or the time for appeal passes in the Maine matter. (Read more on the Maine ruling below.)]

In the Colorado case, the Republican Party officials argue in their petition for a writ of certiorari that the president isn’t an official covered by Section 3 of the Fourteenth Amendment, that Section 3 of the Fourteenth Amendment isn’t self-executing, and that the Republicans’ First Amendment associational rights are violated if they can’t put Trump on the ballot.

They want the justices to take the case on all three of those issues — and they’ve also asked the court to do so quickly.

The Republican and independent voters who brought the litigation responded on Thursday, asking for expedited consideration of the case on their own “because they additionally seek to set an expedited deadline for Trump to file any petition for certiorari, and because Petitioner’s proposed schedule would be too slow.”

In their filing, they stated that they “will not oppose” review of the two Fourteenth Amendment questions — but will oppose review of the “associational” question.

The voters also ask for the court to consider the certiorari petition at its Jan. 5 conference. To that end, they also are seeking an order, if Trump is to file his own cert petition, that it be filed by Jan. 2. If cert is granted, then, in either or both requests, they then ask for the following briefing schedule:

The schedule, they explained, is “so that the Court may issue a ruling before in-state Colorado voters begin receiving their ballots on February 12 and well before Super Tuesday (March 5).”

Colorado Republicans are represented at the high court by Jay Sekulow, a former lawyer to Trump; other lawyers from his organization, the American Center for Law & Justice; and Michael Melito and Robert Kitsmiller from Colorado.

The Colorado voters who brought the lawsuit are represented by Citizens for Responsibility and Ethics in Washington, the law firm of Olson Grimsley Kawanabe Hinchcliff & Murray LLC, Martha Tierney (who is the chair of the board of Common Cause), and Mario Nicolais from Colorado. Jason Murray, from the firm, is the counsel of record.

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Read more on the Colorado Supreme Court decision and the implications for the U.S. Supreme Court at Law Dork.

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And then there was Maine

“I conclude that Mr. Trump's primary petition is invalid,” Maine Secretary of State Shenna Bellows ruled on Thursday following briefing and a Dec. 15 hearing on three objections to Donald Trump’s presidential nomination petition. “Specifically, I find that the declaration on his candidate consent form is false because he is not qualified to hold the office of the President under Section Three of the Fourteenth Amendment.”

While two of the challenges related to Section 3 of the Fourteenth Amendment, the third was brought under the Twenty-Second Amendment — arguing that Trump cannot run for president again because he has insisted that he won election in both 2016 and 2020. Bellows rejected that, concluding that “political grandstanding does not trigger the bar of the Twenty-Second Amendment.”

As to the Fourteenth Amendment challenges, however, Bellows’s ruling followed much of the Colorado Supreme Court’s logic and reasoning, ultimately reaching similar conclusions.

First, she established her authority to act, noting that ‘while state legislatures cannot create new qualifications for holding presidential office, they can choose to establish a process to exclude candidates who fail to meet the qualifications set forth in the U.S. Constitution.” In Maine, she concluded, “It is that authority that the Maine Legislature has delegated to me.”

Notably, in Michigan, where the Michigan Supreme Court rejected a challenge to Trump’s placement on the primary ballot, courts have highlighted the different authority given to officials when reviewing candidate qualifications in Michigan. (The Michigan Supreme Court ruling itself was a dodge, with the appeal simply denied “because we are not persuaded that the questions presented should be reviewed by this Court.”)

Bellows then found that the Maine statutory provision under which the challenge was brought was the appropriate one to bring a challenge based on Section 3 of the Fourteenth Amendment, that Section 3 is self-executing (meaning it does not need additional congressional action to be effectual), and that the presidency is covered by Section 3.

“[I]t is implausible that the drafters of Section Three chose to exempt the highest office in our government from an amendment designed ot keep confederates from positions of power,” she wrote, concluding that “the text, history, and context of Section Three of the Fourteenth Amendment make clear that it covers the President, and that it is a qualification enforceable by the states.”

Finally, Bellows found that the events of Jan. 6, 2021, constituted an insurrection; that Trump engaged in that insurrection (although, Bellows wrote, that was a “closer” question); and that the First Amendment does not protect Trump’s speech because he “intended to incite lawless action,” thus rendering the speech unprotected.

“The weight of the evidence makes clear that Mr. Trump was aware of the tinder laid by his multi-month effort to delegitimize a democratic election, and then chose to light a match,” she wrote.

With that, Bellows ruled that Trump’s primary candidate petition “is invalid” because the Fourteenth Amendment renders him not qualified to be president.

In a concluding section, she wrote, “I am mindful that no Secretary of State has ever deprived a presidential candidate of ballot access based on Section Three of the Fourteenth Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection.”

As with the Colorado Supreme Court’s ruling, however, Bellows put her ruling in Maine on hold for now, pending U.S. Supreme Court resolution of the questions or the expiration of any appeal deadline in the Maine matter.

Per a “notice of appeal rights” listed at the conclusion of the ruling, any appeal can be made in the Superior Court “with 5 days of this date,” so, Jan. 2.

This post was updated and expanded after initial publication to include information about the Maine ruling, with the latest update at 11:59 p.m.

More on the Idaho ADF contract

Law Dork’s exclusive report from earlier this month on the Idaho attorney general’s decision to contract with the Alliance Defending Freedom to have the far-right Christian legal advocacy organization provide legal services “without charge” to the state in key anti-abortion and anti-transgender cases is being cited within the state to hold Attorney General Raúl Labrador accountable for his actions.

On Wednesday, Bryan Clark at the Idaho Statesman used Law Dork’s reporting for the basis of his column:

As Clark concluded, “[H]iring outsiders comes at a cost, even if that cost isn’t taxpayer funds.”

Holding government and other public officials accountable is a major goal of my journalism, so I am thrilled to see other journalists engaging with my work here at Law Dork — and using it to advance that accountability mission.

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