Trump is blocked from the GOP primary ballot in two states. Can he still run for president?

Trump remains on the ballot in Colorado and Maine and his political fate now rests in the hands of the U.S. Supreme Court.

Denver: First, the Colorado Supreme Court ruled that former President Donald Trump was ineligible for his old job in that state. Then Maine’s Democratic secretary of state ruled the same for her state. Who’s next?

Both decisions are historic. The Colorado court was the first to apply to a presidential candidate a constitutional ban that has rarely been used against those “involved in the insurrection.” Maine’s secretary of state was the first election official to unilaterally remove a presidential candidate from the ballot under that provision.

But both decisions are on hold while the legal process plays out.

That means Trump remains on the ballot in Colorado and Maine and his political fate now rests in the hands of the U.S. Supreme Court. The Maine ruling will likely never take effect on its own. Its central impact is mounting pressure on the nation’s highest court to say clearly: Can Trump still run for president after the January 6, 2021, attack on the U.S. Capitol?

WHAT IS THE LEGAL PROBLEM?

After the Civil War, the US ratified the 14th Amendment to guarantee the rights of former slaves and more. It also contained a two-sentence clause called Section 3, intended to prevent former Confederates from regaining government power after the war.

The measure reads:

“No person shall be a Senator or Representative in Congress, or an elector of the President or Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath , as a member of Congress, or as an officer of the United States, or as a member of a legislature of any State, or as an executive or judicial officer of any State, in support of the Constitution of the United States, shall be involved been in rebellion or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress, by a vote of two-thirds of each House, may eliminate any such disability.”

Congress removed that disability from most Confederates in 1872, and the provision fell into disuse. But it was rediscovered after January 6.

HOW DOES THIS APPLY TO TRUMP?

Trump is already facing charges for attempting to overturn his 2020 loss, which culminated on Jan. 6, but Section 3 does not require a criminal conviction to take effect. Dozens of lawsuits have been filed to disqualify Trump, claiming he was involved in an insurrection on Jan. 6 and is no longer qualified to run for office.

All lawsuits failed until the Colorado ruling. And dozens of secretaries of state have been asked to remove him from the ballot. They all said they did not have the authority to do so without a court order — until the decision of Maine Secretary of State Shenna Bellows.

The Supreme Court has never ruled on Section 3. It likely will as it hears appeals of the Colorado decision — the state’s Republican Party has already filed an appeal, and Trump is expected to file his own appeal soon. Bellows’ ruling cannot be appealed directly to the U.S. Supreme Court. Appeals must first be filed through the judiciary, starting with the state court in Maine.

However, the Maine decision does force the hand of the Supreme Court. It was already very likely that the justices would hear the Colorado case, but Maine removes all doubt.

Trump lost Colorado in 2020, and he doesn’t need to win it again to gain a majority in the Electoral College next year. But he won one of Maine’s four Electoral College votes in 2020 by winning the state’s second congressional district, so Bellows’ decision would have a direct impact on his chances next November.

Until the Supreme Court rules, each state can adopt its own standard on whether Trump, or anyone else, can participate in the vote. That’s the kind of legal chaos the court is meant to prevent.

WHAT ARE THE ARGUMENTS IN THE CASE?

Trump’s lawyers have several arguments against the push to disqualify him. First, it is not clear that Section 3 applies to the president. An early draft mentioned the office, but that was removed, and the term “an officer of the United States” elsewhere in the Constitution does not mean the president, they argue.

Second, even if it does apply to the presidency, they say, this is a “political” issue best decided by voters, not unelected judges. Third, if judges do want to get involved, the lawyers argue, they will violate Trump’s right to due process by flatly ruling that he is ineligible without some form of fact-finding, such as a lengthy criminal trial. Fourth, they argue, January 6 was not an insurrection within the meaning of Section 3 – it was more like a riot. After all, even if it was an insurrection, they say, Trump wasn’t involved — he was just exercising his right to free speech.

Of course, the lawyers who want to disqualify Trump also have arguments. The most important thing is that the case is actually very simple: on January 6 there was an insurrection, Trump incited it and he was disqualified.

WHAT TAKES SO LONG?

The attack took place three years ago, but the challenges were not yet “ripe,” to use the legal term, until Trump filed a petition this fall to take part in the state’s ballots.

But the length of time also brings up another issue: no one has really wanted to rule on the merits of the case. Most judges dismissed the lawsuits due to technical issues, including the fact that courts do not have the authority to tell parties who to vote for the first time. Secretaries of State have also dodged this, usually telling those who ask them to ban Trump that they do not have the authority to do so unless ordered by a court.

No one can dodge anymore. Legal experts have warned that if the Supreme Court does not clearly resolve the issue, it could lead to chaos in November — or in January 2025, if Trump wins the election. Imagine, they say, that the Supreme Court sidesteps the issue or says it’s not a decision for the courts to make, and Democrats win a slim majority in Congress. Would they give Trump a seat or declare him ineligible under Section 3?

WHY DID MAINE DO THIS?

Maine has an unusual process in which a secretary of state must hold a public hearing on challenges to politicians’ positions on the ballot and then issue a ruling. Multiple groups of Maine voters, including a bipartisan group of former state lawmakers, filed such a challenge, leading to Bellows’ decision.

Bellows is a Democrat, former head of the Maine chapter of the American Civil Liberties Union, and has a long line of criticism of Trump on social media. Trump’s lawyers asked her to withdraw from the case, citing reports calling January 6 an “insurrection” and lamenting Trump’s acquittal in his impeachment trial over the attack.

She declined, saying she did not judge based on personal opinions. But the precedent it sets is remarkable, critics say. In theory, election officials in any state could decide a candidate is ineligible based on a new legal theory about Section 3 and terminate their candidacy.

Conservatives argue that Section 3 could apply to Vice President Kamala Harris, for example — it was used to ban from office even those who donated small amounts of money to individual Confederates. Couldn’t it be used against Harris, they say, because she raised money for those arrested during the unrest following the 2020 killing of George Floyd by Minneapolis police?

Is this a party political issue?

Well, of course it is. Bellows is a Democrat and all of the Colorado Supreme Court justices were appointed by Democrats. Six of the nine justices of the US Supreme Court were appointed by Republicans, three by Trump himself.

But courts are not always divided along predictable party political lines. The ruling in Colorado was 4-3 — so three Democratic appointees disagreed with expelling Trump. Several prominent legal conservatives have defended the use of Section 3 against the former president.

Now we’ll see how the Supreme Court handles it.