A version of this article was originally published in The Daily Brief, our Maine politics newsletter. Sign up here for daily news and insight from politics editor Michael Shepherd.
The legal theory that former President Donald Trump should be barred from next year’s ballot under the 14th Amendment to the U.S. Constitution is being examined by Maine Secretary of State Shenna Bellows and other election officials across the country.
The idea is effectively untested, though we have seen courts poke at parts of it since the Capitol riots of Jan. 6, 2021. Trump, who is currently the overwhelming front-runner for the Republican nomination to face President Joe Biden, is facing federal charges for his efforts to overturn the 2020 election.
The context: Trump is not being charged with insurrection, which is the key word in the part of the 14th Amendment that is in question here. Ratified in 1868 during the Reconstruction period after the Civil War, the amendment sought to bar Confederates from gaining power in the U.S. government by barring anyone who “engaged in insurrection” against the nation from office absent supermajority approval from Congress.
This has scarcely been invoked since then, but courts will certainly be called upon to evaluate the idea in the next year. Liberal nonprofits are promising challenges across the country if Trump is allowed on primary ballots, arguing that he fomented the riots and that they constitute insurrection. Trump’s campaign would likely sue anywhere he is barred.
Point, counterpoint: It is hard to know where any of this would end up. The case for barring Trump is bolstered by an often-cited analysis from two conservative legal scholars who say the section applies to him.
However, there are plenty of analysts who disagree, including a California law professor who argues the Capitol riots were not major enough and that Americans should be wary of giving election officials sweeping power to keep candidates off the ballot.
What’s next: Those state officials are likely to be the first to make these kinds of decisions. There are already early lawsuits on this subject, including one from a longshot Republican candidate who wants New Hampshire to keep Trump off the ballot for this reason.
Unless a lawsuit forced Maine’s hand earlier, the decision point would likely come after the Dec. 1 deadline for presidential candidates to declare for the Maine primaries. Under state law, those petitions can be challenged. An administrative hearing by the secretary of state’s office would follow, and the ultimate decision could be appealed to court.
This would put Bellows, a Democrat who is widely seen as a future candidate for high office, in the national spotlight. She is already getting attention on that front, stressing to MSNBC’s Chris Hayes last week that the ultimate decision about a candidate’s eligibility will follow the law and not political winds.
“We’re being very careful to not engage in speculation about a particular candidate,” Bellows said. “We’ll make those evaluations when they’re properly presented to us.”