The Volokh Conspiracy
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Maine and Michigan Issue Rulings on Trump and Section 3 Disqualification
Maine's Secretary of State ruled that Trump is ineligible for the presidency. The Michigan Supreme Court refused to reconsider a lower court ruling allowing Trump to remain on the GOP primary ballot, because state law doesn't limit primary ballot access to allow only candidates eligible for the office they seek.
Over the last two days, the states of Maine and Michigan have issued rulings on challenges to Donald Trump's eligibility to run for the presidency, under Section 3 of the Fourteenth Amendment. Maine Secretary of State Shenna Bellows (a Democrat) ruled that Trump is disqualified from being a candidate in the state's GOP presidential primary. Meanwhile, the Michigan Supreme Court refused to reconsider lower court rulings holding that Trump cannot be removed from the state's primary ballot because state law doesn't require primary candidates to be legally eligible for the office they seek election to.
The Maine decision is the more significant of the two, because it actually reaches the merits of the Section 3 issue. Secretary Bellows' ruling is similar to the recent Colorado Supreme Court decision on the same subject. Like the Colorado court, Bellows concludes that the January 6, 2021 attack on the Capitol was an insurrection (an easy call, in my view), that Trump's activities amounted to "engaging" in that insurrection (I think this is the hardest issue at stake), that the president is an "officer of the United States" covered by Section 3 (another easy issue), that Trump's activities were not protected by the First Amendment, and that Section 3 is "self-executing" and thus states can enforce it without additional congressional legislation. Like the Colorado Supreme Court, Bellows also concludes that the laws of her state require candidates whose names appear on primary ballots to be eligible for the office they seek.
I won't review Bellows' reasoning in detail. But, as already noted, it is largely similar to that of the Colorado Supreme Court decision, which I analyzed at some length here. I think the Colorado ruling is correct, and therefore Bellows' decision is sound, as well. As Bellows notes, her ruling is subject to review by state courts and - ultimately - the US Supreme Court.
Bellows' ruling also addresses a number of evidentiary issues, which I will not try to assess, but which can potentially be reviewed by state courts. In addition, she rejects a clever but ultimately frivolous argument that Trump is disqualified from running for president under the Twenty-Second Amendment, which bars people who have already served two terms. The plaintiff alleged Trump is ineligible under that Amendment because he claims he won the 2020 election; if so, Trump has already had a second term as president, and therefore can't run in 2024! Bellows rightly notes that "Application of the term limit turns on whether an individual has actually been elected President twice, not on beliefs or assertions about that fact…. That Mr. Trump has falsely asserted that he
won the 2020 election is no more disqualifying than it would be for him to proclaim that he is not a United States citizen."
Coming on the heels of the Colorado ruling, the Maine decision (especially if upheld by state courts), makes it more likely that additional states will disqualify Trump. That, in turn, makes it more likely the Colorado decision will be reviewed by the US Supreme Court (the Colorado GOP has already asked the Court to take the case). If the federal Supreme Court doesn't definitively resolve the issue, we are likely to end up with a situation where Trump is barred from the ballot in some states, but not others.
The Michigan Supreme Court ruling is a denial of a petition to review lower court decisions that held Trump cannot be excluded from the GOP primary ballot because - unlike in Colorado and Maine - candidates who appear on state primary ballots need not be constitutionally eligible for the office they seek. The lower court and the Supreme Court leave open the possibility that Trump can be barred from the general election ballot, should he win the Republican nomination.
Significantly, neither the lower courts nor the Supreme Court addressed the issues of whether Trump is disqualified from holding office under Section 3. The lower courts simply concluded they need not consider that question, because Trump cannot be barred from the primary ballot regardless of whether he is ineligible to become president, or not. The Supreme Court chose not to review those rulings.
There is a dissent to the denial of the right to appeal by Justice Elizabeth Welch. Some commentators have wrongly assumed this dissent represents the opinion of the Court. But it is actually just a statement of one justice's reasons explaining why she would have preferred for the state Supreme Court to review the case and issue a decision, as opposed to simply leaving lower court rulings in place by denying the plaintiffs the right to appeal.
We cannot assume the other justices necessarily agree with Justice Welch's reasoning. But, to the extent it matters, she writes that she would have affirmed the lower court ruling on the grounds that Michigan state law (which she carefully differentiates from the Colorado law relied on by that state's Supreme Court) doesn't bar constitutionally ineligible candidates from primary ballots. She also notes she "would affirm the Court of Appeals' ruling…, which still allows appellants to renew their legal efforts as to the Michigan general election later in 2024 should Trump become the Republican nominee for President of the United States or seek such office as an independent candidate."
I did a more detailed overview of the legal, moral, and political issues at stake in the Section 3 litigation in this article. In a more recent post, I explained why Section 3 disqualification doesn't require a prior criminal conviction for insurrection.
