Donald Trump is reportedly expected to file legal challenges early next week to rulings in Maine and Colorado knocking him off primary ballots amid mounting pressure on US supreme court justices to rule on whether his actions on 6 January 2021 constitutionally exclude him from seeking a second term in the White House.
The New York Times said that Trump’s legal moves could come as early as Tuesday.
The impending collision of legal, constitutional and political issues comes after the two states separately ruled that the former US president was ineligible under a constitutional amendment designed to keep Confederates from serving in high office after the civil war.
In Maine, the secretary of state, a political appointee, issued the ruling and a challenge will be filed in state court. Meanwhile, in Colorado the decision was made by the state’s highest court and will probably have a swifter passage to the conservative-leaning US supreme court – should it wish to hear the case.
The conservative justices on the supreme court are sympathetic to “originalism”, which holds that the meaning of the constitution and its amendments should be interpreted by what its authors wrote. On the other side are justices more in tune with a contemporary application of the spirit of the original wording.
The precise wording of the passage in question – section 3 of the 14th amendment – says anyone who has taken the oath of office, as Trump did at his 2017 inauguration, and “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”, is ineligible.
But at the heart of the anticipated challenges will be whether individual states have the authority to interpret constitutional matters outside their own constitutions. “Every state is different,” Shenna Bellows, Maine’s secretary of state, said on Friday. “I swore an oath to uphold the constitution. I fulfilled my duty.”
The rulings have received pushback from elected officials. California’s governor, Gavin Newsom, said Trump should be beaten at the polls and back-and-forth ballot rulings in states are a “political distraction”.
After Maine’s decision on Thursday, Republican senator Susan Collins said voters in her state should decide who wins the election – “not a secretary of state chosen by the legislature”. Former New Jersey governor and trailing nomination rival Chris Christie told CNN the rulings make Trump “a martyr”.
“He’s very good at playing ‘poor me, poor me’. He’s always complaining,” Christie added.
Florida’s governor, Ron DeSantis, told Fox News that the Maine decision violates Trump’s right to due process – a jury decision on the now-delayed insurrection case. Former South Carolina governor Nikki Haley said: “It should be up to voters to decide who gets elected.”
One Trump adviser, speaking on condition of anonymity, told the Washington Post that all state appeals court decisions on multiple efforts to kick Trump off state primary ballots – 16 have failed, 14 are pending – have ruled in the former president’s favor.
“We don’t love the Colorado ruling, of course, but think it will resolve itself,” the adviser said.
According to the New York Times on Saturday, Trump has privately told people that he believes the US supreme court will rule against the decisions. But the court has also been wary of wading into the turbulent constitutional waters of Trump’s multiple legal issues.
Last week, the court denied special counsel Jack Smith’s request to expedite a ruling on whether Donald Trump can claim presidential immunity over his alleged crimes following the 2020 election.
But the argument that voters, and not courts or elected officials, should decide elections has been under stress since the 2000 election when Republican George W Bush was elected after a stinging legal battle with then vice-president Al Gore over Florida ballot recounts that was ultimately decided by the court.
According to the Times, Trump is concerned that the conservative justices, who make up a “supermajority”, will be worried about the perception of being “political” and rule against him.
Conversely, the justices might not want to be steamrollered into making decisions on a primary ballot timetable set by individual states that are themselves open to accusations of political coloring.
For now, both the Maine and Colorado decisions are on hold. The Colorado Republican party has asked the US supreme court to look at the state’s decision, and Trump is anticipated to repeat that request and has said he will appeal the Maine decision.
Maine’s Republican party chair, Joel Stetkis, told the Washington Post that “Shenna Bellows has kicked a hornet’s nest and woken up a sleeping giant in the state of Maine. There’s a lot of people very, very upset that one person wants to take away their choice.”
Trump spokesperson Steven Cheung told the outlet: “We are witnessing, in real time, the attempted theft of an election and the disenfranchisement of the American voter.”
Democrats in blue states, he said, “are recklessly and un-Constitutionally suspending the civil rights of the American voters by attempting to summarily remove President Trump’s name from ballots. These partisan election interference efforts are a hostile assault on American democracy.”
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