The U.S. Supreme Court is now tasked with deciding whether Donald J. Trump is ineligible to be a candidate for the presidency in the pending appeal from the Dec. 19 decision by the Supreme Court of Colorado. The U.S. high court’s decision could impact whether Trump is eligible on Maine’s ballot.

The Colorado case will be argued before SCOTUS on Feb. 8. Trump’s attorneys contend that the president is not an officer under Section 3 of the 14th Amendment to the Constitution (the Disqualification Clause) and that he did not engage in an insurrection on Jan. 6, 2021.

Maine Secretary of State Shenna Bellows also decided on Dec. 28 that Trump was ineligible to be on the ballot.

The Maine case

Inexplicably, Trump, or Trump’s lawyers, elected to not present a credible defense in the Maine case. They submitted an exhibit list prior to the hearing with only one unconvincing piece of evidence. Even though they were afforded an opportunity to present additional exhibits after the hearing ended, they elected not to do so.

It appeared as though they wanted Secretary Bellows to make a prompt decision against Trump and forced her to consider only the evidence that pointed to his guilt regarding the riot/insurrection. The hearing script was written in the genre of a Greek tragedy.

Trump appealed the decision by Secretary Bellows, and the trial court declined to decide the case prior to a decision by SCOTUS on the Colorado case. Secretary Bellows has asked the Maine Supreme Court to decide the case. That court has decided to wait and see what SCOTUS does in the Colorado case.

The ultimate question that is being raised is this: Will the decision reached in the Colorado case be binding upon the courts in Maine?

Possible decisions by SCOTUS

If the U.S. Supreme Court’s holding is that the Disqualification Clause is inapplicable to Donald Trump because the clause does not apply to the presidency, this holding would be binding on the courts in every state, including Maine.

SCOTUS may, alternatively, decide that there was no insurrection or that Trump did not engage in an insurrection based upon the record in the Colorado case.

A third possibility is avoiding a decision on the merits and denying standing to the Colorado plaintiffs to challenge Trump’s eligibility.

In the record in the Maine case, Trump’s lawyers do not in any significant way challenge the issue that there was an insurrection. SCOTUS could agree with Trump’s defense in Colorado, but no such credible defense was presented in Maine. Consequently. It is conceivable that Trump could be found, based upon the different records, that he did not engage in an insurrection in Colorado, but he did so in Maine. He could be eligible in Colorado, and he could be ineligible in Maine.

In support of this conclusion, it could be argued that the framers of the 14th Amendment did not intend to diminish the role of the states in the electoral process. Section 3, then, is designed to penalize those who had revolted against the Union, but not to diminish the authority of the states in the electoral process. Therefore, the decision on eligibility could be different in the various jurisdictions.

Moreover, even if the Colorado plaintiffs lack standing, there is clearly standing of the Maine complainants pursuant to Maine law.

A prediction: Applying the reasoning in the Dobbs Abortion case Overruling Roe

Since there is no indication in Section 3 that the Disqualification Clause was intended to preclude each state from making the decision, the obvious conclusion is that the framers did not intend to disrupt the constitutional formula for the individual states to make the determination of eligibility on a state-by-state basis.

My prediction is that SCOTUS will find Trump to be eligible and he will be a candidate for the presidency in 2024. But what will be the basis for the decision? And will the decision in the Colorado case affect the decision in the Maine case?

The Maine Supreme Court will likely affirm Secretary Bellows’ well-reasoned decision that Trump is ineligible according to the law in Maine.

Like a Greek tragedy, the Maine case presents a perfect occasion for SCOTUS to decline review. Trump, in fact, presented no defense. The finding of facts is beyond dispute. The decision was made upon a factual record that demands that Trump be ineligible in Maine. No other conclusion is legally sensible.

SCOTUS will have to reach deeply into its bag of tricks to avoid the result of Maine’s courts based upon the facts and law in the Maine case.

If SCOTUS follows its reasoning in the Dobbs case, it will acknowledge that the Founding Fathers gave to the states the authority to control the election of the president in their state.

Trump could be eligible in Colorado but not in Maine. And other states could also declare that he is ineligible.

David. H. Moskowitz is a retired Pennsylvania lawyer, and the author of a new book, “The Judge and the President: Stealing the 2020 Election.”

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