How Colorado and Maine Decisions Bolster The Efforts To Bar Trump From The 2024 Primary Ballots

Civil Rights Policy Brief #216 | By: Rodney A. Maggay | January 2, 2024

Photo taken from: www.cnn.com

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Policy Summary: Section 3 of the Fourteenth Amendment to the United States Constitution provides:

“No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … as an officer of the United States … 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.”

In the last year, a number of efforts in multiple states have started to try and use the text of this clause to disqualify former President Donald Trump from appearing on the Republican primary ballot of the state for the 2024 Republican nomination for President of the United States. The efforts have been mixed. Initially in some states, petitions were created to ask Secretaries of States to keep Trump off the primary ballots. However, when some of these officials declined to take such a momentous step without more legal clarity, many of these citizens and non – profit groups took their efforts to the courts. All told, including petitions and court cases still pending, there are a total of thirteen states that could decide this particular issue.

In Florida, a case was filed seeking to disqualify Trump. However, the case was eventually dismissed on procedural grounds with the federal district court reasoning that a citizen in Florida did not have standing to bring the case. In Minnesota, another case was filed to disqualify Trump although the case never addressed whether Trump had actively incited a rebellion or insurrection as mentioned in the text of Section 3. The court simply reasoned that Minnesota law permitted political parties to place whomever they choose on the state’s primary ballot. And in Michigan, a petition was brought to disqualify Trump there that eventually became a lawsuit in the Michigan Court of Claims. The case was dismissed. Appeals were made to the Michigan Court of Appeals and the Michigan Supreme Court and both affirmed the trial court’s dismissal, allowing Trump to appear on Michigan’s primary ballot. All of these cases denied Trump’s disqualification for a variety of reasons.

But in two states, Colorado and Maine, activists achieved their first victories in seeking to bar the former President under Section 3 of the Fourteenth Amendment. A lawsuit was filed in Colorado and a trial was held in the case. The trial court found that Trump engaged in insurrection on January 6th, 2021 but reasoned he should still remain on the primary ballot. The case was then appealed to the Colorado Supreme Court, which affirmed that Trump had engaged in insurrection. The high court then went further and in a 4 – 3 decision stated that Trump was ineligible to be on the Colorado 2024 primary ballot because of his actions on January 6th.

In Maine, three registered voters challenged Trump’s eligibility to be on the ballot as they are permitted to do under Maine law. That then triggered a process requiring the Secretary of State to hold a public hearing, hear evidence and issue a ruling on the matter. After hearing the evidence provided at the public hearing Maine Secretary of State Shenna Bellows issued her ruling disqualifying Trump from the Maine primary ballot. In her ruling Sec. Bellows found it easy to conclude that Trump engaged in insurrection on January 6th and that his action were “intended to incite lawless action” in order to prevent the peaceful transfer of power.  LEARN MORE, LEARN MORE, LEARN MORE

Policy Analysis: The two decisions from the Colorado Supreme Court and the Maine Department of the Secretary of State are significant decisions that could have far – reaching consequences for the 2024 election. After a string of legal defeats in other states where some cases were decided on procedural grounds or where some justices were hesitant to address the topic head – on the Colorado Supreme Court and the Maine Department of the Secretary of State got it right on a number of issues that activists had sought.

The Colorado Supreme Court made six key findings that could be focused on in other states where Trump’s eligibility is still to be decided. In its decision, the court found 1] Colorado state law permits voters “standing” to challenge Trump’s eligibility (contrary to the case in Florida that sought to bar Trump from the primary ballot there), 2] Colorado can enforce a ban on a candidate without approval from Congress, 3] the insurrectionist ban applies to presidential candidates, 4] the January 6th, 2021 attack was an insurrection, 5] former President Trump engaged in the insurrection and 6] Trump’s January 6th 2021 speech inciting the rioters was not protected speech under the First Amendment. And in the Maine decision in Sections D – 3 and 4, Sec. Bellows lays out the factual evidence that demonstrate that the actions of January 6th 2001 was an insurrection and that Trump engaged in it while refuting Trump’s arguments that he was not involved.

All of these findings are key because any uncertainty about these key facts could have been the basis to defeat the challenges to Trump’s eligibility and allow him to remain on primary ballots. Much of the discussion about Trump’s eligibility have been slanted depending on whether one supports or opposes Trump and that has often led to head – scratching conclusions. Right wing media has tried to characterize the January 6th attack as nothing more than a minor shouting match in order to avoid admitting what it really was – a violent attack to disrupt the peaceful transfer of power that resulted in death. By finding it really was an insurrection the Colorado Supreme Court can deny a key argument put forth by right wing media. Their finding also applies to whether Trump engaged in insurrection. Many pro – Trump supporters have tried to deny that Trump instigated the chaos at the Capitol that day. But the Colorado Supreme Court and the Maine Secretary of State’s ruling shows that this line of argument is false and disinformation used for nothing more than to protect a president who could not in good faith admit that he lost an election.

The other findings are important because it addresses presidential eligibility issues that have not been decided by any other court of law so far. Some legal scholars have opined that presidential eligibility must be decided by Congress and not the individual states. Additionally, some have even theorized that the insurrectionist ban from Section 3 does not apply to presidential candidates. And, Trump’s January 6th speech should be protected free speech. What the Colorado Supreme Court and the Maine Secretary of State decisions shows is that there are good and strong legal arguments to apply Trump’s actions to the text of Section 3 and bar him from 2024 primary ballots. Without these key findings made by the Colorado Supreme Court and Sec. Bellows, other states could simply decline to address the issue in their own states or even determine falsely that Trump was not responsible for some of the actions he is being accused of. Colorado and Maine have taken the first step toward accountability for a former President who refuses to be held accountable for trying to destabilize the democratic process, a crime that Section 3 was specifically written to prevent against.

It is the rule of law that is paramount in this country and both Colorado and Maine have demonstrated for all other states and the courts (even the Supreme Court where an appeal is likely) that an in – depth analysis of Trump’s actions shows that Section 3 can be applied to him to bar him from the ballot. LEARN MORE, LEARN MORE, LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources

• LawFare – map tracker of 14th Amendment Trump disqualification efforts and results.
• Vox – good informational website on the 14th Amendment disqualification efforts and the legal arguments for and against a ban on Trump’s 2024 candidacy.
• Citizens for Responsibility and Ethics in Washington (CREW) – press release from non – profit group involved in the Colorado lawsuit.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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