What do a Civil War general, a disgraced congressman and an anti-war socialist have in common? They’re part of a colorful history of electoral law which undermines Secretary Shenna Bellows’ legal rationale for excluding Donald Trump from the Republican ballot in our upcoming Presidential primary. With a hubris rivaling Mr. Trump’s, Bellow blithely dismissed legal precedents which didn’t suit her.

Just to be clear, I’m not encouraging anybody to vote for Mr. Trump. To me, selecting Trump as the Republican Party’s flagship candidate makes as much sense as parading through an episode of “The Walking Dead” chanting “Bang a gong! Bring ‘em on!” Toxic coattails is a real thing. Many of my fellow Republicans disagree – their vote, their choice.

And that’s the point. Take Adam Clayton Powell, a civil-rights champion so corrupt that the 90th Congress overwhelmingly voted to exclude him for official misconduct during the previous Congress. In deciding his case, the Supreme Court repeatedly emphasized a “fundamental principle of our representative democracy” – people have a right to choose whom they please to govern them, and limiting who they can select undermines that as much as restricting their right to vote. In his concurring opinion, Justice Douglas spent a few pages citing the tale of “Wild Bill” Langer, another scoundrel who “signed a Declaration of Independence, invoked martial law, and called out the National Guard” to avoid being removed from office – less than a decade later, he was elected to the U.S. Senate, eventually chairing the Senate Judiciary Committee.

Or take Victor Berger, a peace-loving Socialist Party founder and the last member Congress barred under the now-notorious Section 3. During the First World War, Mr. Berger was sentenced to 20 years in prison for violating the Espionage Act (he publicly opposed our entry into the war). Congress overwhelmingly declared him ineligible for office, and then bounced him a second time after he won the special election to fill his vacant seat. Mr. Berger went on to serve three more terms in Congress after the Supreme Court overturned his conviction – the trial judge hadn’t recused himself after Mr. Berger and his fellow defendants credibly accused him of publicly declaring a personal bias against German-Americans.

The real unraveling of Secretary Bellows’ legalistic logic lies in her declaration that “the fact that Section 3 refers to holding office, rather than running for office, is not noteworthy.” That’s not only noteworthy, it’s central to countless decisions about contested elections over the last century and a half, tracing back to the case of Francis Blair, who resigned his commission as a major general in January 1864 to serve in the 38th Congress. A special committee deemed him unqualified because he was still a major general when that Congress convened in December 1863. Ever since, courts have decided time-sensitive qualifications based on the date an elected official takes office. Maine’s Supreme Judicial Court explicitly endorsed this doctrine a half-century ago.

By this same logic, even if you believe (as Secretary Bellows explicitly does) that Trump engaged in insurrection, it’s still impossible to objectively declare that Trump will be unqualified to serve based on a section of the 14th Amendment which allows this Congress (or the next) to waive that section. Without that “objective fact,” none of the evidence offered by the challengers can disprove Trump’s declaration that he will be qualified to serve as President next January. Trump’s attorneys pointed this out to Secretary Bellows. She dismissed it out of hand while declaring that she was “required by law” to hold a mock trial of Trump under the guise of an evidentiary hearing.

Another weakness in Secretary Bellows’ decision is conflating the primary with the general election. Everything about people’s right to choose whom they vote for applies more so to party primaries. States must tread carefully when interfering with the internal decision-making of political parties. The U.S. Supreme Court admonished California that “the processes by which political parties select their nominees are not wholly public affairs that States may regulate freely,” little more than a decade after also scolding California that “a State may enact laws to prevent disruption of political parties from without but not from within.” Maine has limited power to protect the Republican Party from itself.

Explicitly removing a party’s favorite candidate from their primary ballot is a blatant attempt by Secretary Bellows to impose her will on Maine’s Republicans. It will face “strict scrutiny” by every court it is heard in.

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