AUGUSTA — Challengers seeking to disqualify Donald Trump from appearing on Maine’s presidential primary ballot and attorneys for the former president sparred during a hearing before the secretary of state Friday.
The hearing came after five people filed three separate challenges to Trump’s appearing on the March 5 primary ballot, including three former state elected officials who argued that Trump is ineligible because he engaged in insurrection on Jan. 6, 2021.
“We believe former President Trump on Jan. 6 engaged in an insurrection against the Constitution of the United States,” James Kilbreth, an attorney representing challengers Ethan Strimling, Kimberly Rosen and Tom Saviello, said during opening arguments.
That would make Trump ineligible to serve as president because it would be a violation of Section 3 of the 14th Amendment, he said.
Attorneys for Trump said Secretary of State Shenna Bellows doesn’t have the authority to disqualify Trump from the ballot and even if she did, that part of the Constitution doesn’t apply to the presidency or the ability of someone to run for office.
“We do not believe this tribunal has any jurisdiction in this instance,” Trump attorney Scott Gessler said.
The eight-hour hearing was held at the State House and presided over by Bellows, who plans to rule on the validity of the challenges by Dec. 22.
It focused largely on whether Bellows has the authority to decide whether Trump may appear on the ballot – or if that decision lies with federal authorities or courts – and the history of Section 3, which prohibits people from holding office if they “have engaged in insurrection or rebellion against the (Constitution), or given aid or comfort to the enemies thereof.”
The hearing came as the Republican front-runner’s appearance on ballots is being challenged across the country. Challenges have been filed in at least 32 states, according to the blog Lawfare, which is tracking such efforts. It does not list any successful challenges to date.
Challengers in other states also have argued that Trump should be ineligible because of the 14th Amendment and his actions around the Jan. 6, 2021, riot at the Capitol.
WHO HAS AUTHORITY?
Benjamin Gaines, another attorney representing Strimling, Saviello and Rosen, said the secretary of state has “clear authority” under state law to review declarations by candidates and prepare ballots.
“The Legislature clearly delegated the authority to the secretary to evaluate the qualifications of the candidates for various offices, legislative and federal offices,” he said.
But Gessler and fellow Trump attorney Gary Lawkowski argued that Bellows does not have the authority to make a decision on Trump’s ballot access. Gessler said secretaries of state around the country are allowed to execute “specific delegated duties” that wouldn’t address the arguments being brought forward by the challengers.
“We think, if anything, the statutory language is very clear, that your office does not have the authority,” Gessler told Bellows.
Challengers submitted over 100 exhibits of evidence to make their case, including several video clips of speeches and interviews given by Trump and clips of the events of Jan. 6. Gaines said the clips “show a pattern of behavior by President Trump where he encouraged violent behavior by his supporters.”
14th AMENDMENT
They also called an expert witness, Gerard Magliocca, a professor at Indiana University’s Robert H. McKinney School of Law who has published several books on constitutional history. Both sides and Bellows questioned Magliocca about the history of Section 3 of the 14th Amendment.
Magliocca testified that the section was added shortly after the Civil War as a way of preventing officials who had left the U.S. government and joined the Confederacy from being able to return to office.
At one point, Bellows asked Magliocca if there have been any historical instances in which a state official utilized Section 3 to disqualify someone from the ballot.
Magliocca said no, though he also noted that ballot law has changed over time. The closest example he said is from Georgia in 1868 when the governor refused to certify someone to office citing Section 3 grounds.
But Kilbreth also asked if there has ever been an insurrection like Jan. 6 that would trigger Section 3 being used. Magliocca said no.
Gessler argued that section of the Constitution doesn’t explicitly name the presidency as an office it refers to and pointed out that the language also says the section bars people from “holding office,” but not from running.
“It would be somewhat nonsensical for different (states) to have different approaches and decisions and where a person could run in some states but not others under Section 3,” Gessler said. “That does create chaos.”
Strimling, a former Democratic state lawmaker and Portland mayor, and two former Republican state lawmakers, Saviello and Rosen, together filed their challenge to Trump appearing on the ballot in a letter to Bellows’ office this month. Mary Anne Royal, of Winterport, and Paul Gordon, of Portland, also filed letters with Bellows challenging Trump’s appearance on the ballot.
Both Royal and Gordon presented their cases to Bellows on Friday, though they were less of a focus than the case from the three former lawmakers.
Royal also argued that Trump violated Section 3, while Gordon’s challenge took a different tack, arguing that Trump is not eligible to be on the ballot because he claims to have won the 2020 election, which would have been his second term. The 22nd Amendment states that no person shall be elected to the office of president more than twice.
The hearing did not conclude Friday as attorneys have until 5 p.m. Monday to file written objections to exhibits and until 5 p.m. Tuesday to file rebuttals. Closing briefs are also due by 5 p.m. Tuesday.
Bellows has five business days from the conclusion of the hearing to issue a decision. While the delay in closing the hearing would give her additional time, Bellows said Friday that she plans to stick with the original deadline that was set should the hearing have concluded Friday and intends to issue her decision by the close of business on Dec. 22.
A challenger or a candidate may appeal the decision to the Superior Court, whose decision may be appealed to the Law Court.
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