Maine Secretary of State hears arguments for and against challenges to Trump’s ballot eligibility
Mainers who filed challenges to former President Donald Trump’s primary election eligibility say putting him on the ballot would violate two amendments of the U.S. Constitution, the 14th and 22nd. Counsel for Trump says only one section of the Constitution matters — the three qualifications for the presidency.
The challengers presented their arguments on Friday to Maine Secretary of State Shenna Bellows, who is expected to issue her ruling later this month.
The hearing also sought to answer the question of whether Bellows, who served as presiding officer over the hearing, has the authority to rule on the challenges, a power objected to by Trump’s counsel.
Maine is the latest state to see pushback to Trump’s eligibility, coming after closely watched challenges in Michigan, Minnesota and Colorado.
Colorado’s case is both topically related to some of the challenges in Maine, as it is based on the 14th Amendment, and has personnel overlap. Trump’s counsel in both Colorado and Maine include Gary Lawkowski and Scott Gessler, and the challengers in both cases called the same expert witness.
So far, no state has sided with challengers to Trump’s ballot eligibility.
Three challenges have been filed in Maine, all of which centered on constitutional violations. Two argue Trump is ineligible under the “insurrection clause” of the 14th Amendment. The other argues he is ineligible under the 22nd Amendment, which outlines term limits, because the former president has maintained that he won the 2020 election.
Hearing to continue
After an eight-hour hearing on Friday, proceedings remained unfinished.
Counsel representing those who filed challenges to Trump’s eligibility presented evidence—mainly a series of videos related to the Jan. 6 attack as well as after the 2020 election, in which Trump claimed he won—as well as exhibits from the public hearings of the U.S. House Select Committee on Jan. 6.
However, this evidence was only permitted to be considered provisionally on Friday after objections from Trump’s counsel on the basis that the exhibits submitted by the challengers could not be reviewed in advance of the hearing, both due to technical difficulties as well as timing. The timeline is compressed by Maine law, which requires that a hearing be held within five business days of the challenge.
By 5 p.m. on Dec. 18, Trump’s counsel must submit their brief objecting to the evidence, and the challengers then have 24 hours to respond to those objections. If the objection is sustained, then the evidence presented Friday will not be a part of the record nor the ultimate decision.
Bellows intends to rule on the validity of the challenges by 5 p.m. on Dec. 22, although under Maine law she has five business days after the conclusion of the hearing. Once she does, challengers or Trump can appeal the decision to the Superior Court, whose decision can then be appealed to the Law Court.
While not a regular occurrence, Maine’s Secretary of State has held hearings on ballot eligibility before, most recently involving District Attorney candidate Seth Carey, which she denied because his law license was under suspension and he hadn’t registered with a political party, as the Sun Journal reported at the time. The Secretary of State also disqualified U.S. Senate hopeful Max Linn in 2018 after invalidating petition signatures, as the Press Herald reported.
The challenges
Lawyer Paul Gordon, a Portland resident, filed a challenge with the state based on the 22nd Amendment, which reads, “No person shall be elected to the office of the President more than twice.” Because Trump maintains that he won the 2020 election — a claim that has been widely disproven — he is ineligible to seek reelection because he has reached his two-term limit, Gordon argues in his challenge.
On Friday, Gordon said the fact that Trump has only served one term as president is irrelevant. The amendment at hand “expressly focuses on whether someone has been elected twice, independent of whether they have actually served a second term,” Gordon explained, adding that because Trump maintains that he won the 2020 election, he has reached his term limit.
“It isn’t enough, if you know that he lost,” Gordon said. “It isn’t enough that I know that he lost. If he wants to be on the presidential ballot, he needs to acknowledge that he lost.”
State Rep. Michael Soboleski (R-Phillips) spoke on Friday in support of the Trump campaign, urging Bellows to let the former president remain on the primary ballot because he obtained the necessary 2,000 signatures from Maine Republican voters.
“To obstruct Mr. Trump’s access to our presidential ballot is to blatantly disenfranchise the voters who signed those petitions,” Soboleski argued.
The other two challenges to Trump’s eligibility heard Friday invoke reasoning that has been used in other states. They center on Section 3 of the 14th Amendment of the U.S. Constitution, which prohibits anyone who took an oath to uphold the Constitution and then “engaged in insurrection or rebellion” from holding office in the U.S.
A bipartisan group of former elected officials filed one of these challenges. They include former Portland mayor Ethan Strimling (a Democrat) and former state Sens. Kimberley Rosen and Thomas Saviello (Republicans). The other challenge based on the 14th Amendment came from Winterport resident Mary Ann Royal.
Royal argued Friday that Trump violated the presidential oath of office when “he organized, he welcomed, he sent, he watched” and did nothing to stop the attack on the Capitol.
“If we allow individuals, no matter how popular, access to our ballot after having violated their oath of office we undermine the very foundation of our Republic,” Royal said.
Counsel for Trump cross examined both Royal and Gordon with the same line of questioning: Do you believe President Trump is a natural born U.S. citizen? Do you believe he has been a resident of the United States for the past 14 years? Do you believe he’s at least 35 years of age? Royal and Gordon answered yes to all.
Those three qualifications are the only qualifications that the state must consider in whether Trump can be on the ballot, they argued.
The 14th Amendment argument has not been upheld in other states. The effort in Colorado has proceeded the farthest, as the state is now awaiting a ruling from its Supreme Court.
In November, a Colorado district court judge ruled, “Trump incited an insurrection on Jan. 6, 2021 and therefore ‘engaged’ in insurrection within the meaning of Section 3 of the 14th Amendment.” However, the judge ultimately sided with a legal theory put forward by conservative scholars, and cited by Trump’s attorneys in that case, that Section 3’s reference to individuals who have “taken an oath” as an officer of the U.S. does not include the presidency, as reported by Maine Morning Star’s sister site Colorado Newsline.
Precedent for Section 3
A witness called to testify on behalf of the challengers — Gerard Magliocca, a professor of 19th century constitutional law, who also testified in the Colorado case—spoke to this theory on Friday arguing that the position is “so far in the minority” among academics who have studied the question.
Magliocca argued that the office of the presidency is included in Section 3, referencing debate in the U.S. Senate when the provision was created. Then-Sen. Lot Morrill of Maine said the office of the presidency was included, according to Magliocca. Magliocca also based his interpretation on the widely held view that, after the Civil War, Confederates were ineligible to be president of the U.S. because of Section 3, unless they got amnesty from Congress.
The attorneys for each side also disagreed on the definitions of “oath” and “engaged” when referring to “engaged in insurrection” in Section 3.
Magliocca did not submit an expert report for the case outlining his sources, like he had when he testified in the Colorado case, so upon the request of Trump’s counsel he must submit one by midnight Friday in order for counsel to review it ahead of Monday.
The 14th Amendment “insurrection” clause has been enforced only a handful of times since being ratified in 1868 — with one court using it explicitly in connection to the Jan. 6 insurrection. Last year, a New Mexico court cited it in ruling to remove a Republican county commissioner from office who had participated in the attack on the Capitol.
Challenges to the Secretary of State’s authority
The two sides also took up the question as to whether it is even within the scope of Secretary of State Shenna Bellows to determine the validity of the challenges.
The challengers argued it is; whereas the opposition argued against the office’s authority.
The challengers’ counsel said under Section 337 the Maine legislature provides Bellows with the authority to rule on ballot eligibility specifically upon a challenge.
Trump’s counsel said Bellows is not ultimately responsible, because ballot eligibility and eligibility to preside in office are not the same. Candidates can be on a ballot even if they don’t meet the requirements to hold office, Trump’s counsel argued.
Bellows’ ruling will also include a determination on her ability to preside over the challenges.
Emma Davis is a reporter based in Portland, Maine, where she focuses on government accountability.