A growing number of legal experts believe that the U.S. Supreme Court will eventually have to decide the question of whether former President Donald Trump can constitutionally be removed from state ballots after Colorado and Maine elected to do so last month.
Trump has not been charged with that crime, much less convicted of it but the Colorado Supreme Court and Maine Secretary of State Shenna Bellows have removed him for it under a provision of the 14th Amendment, which was passed in the immediate aftermath of the Civil War.
Two more states, Michigan and Minnesota, have ruled against efforts to remove Trump, as did California’s secretary of state last week, Newsmax noted.
“The Colorado case definitely increased the likelihood that the U.S. Supreme Court will intervene,” Doug Spencer, a law professor at the University of Colorado, told the Washington Examiner.
“It’s true that the Supreme Court often takes up cases when there is a divide among the federal circuits. But the same is not true when there is a divide among state Supreme Courts. That is especially true when, as is the case here, the cases are decided on state law grounds,” he added.
Most other experts, however, appear to lean towards the Supreme Court ultimately making the decision.
Professor Ray Brescia of Albany Law School, for example, told the Examiner that, ultimately, the nation’s highest court will have to weigh in on the issue, noting further that his thinking is in part due to the “different procedural postures” states presented with efforts to remove Trump from their respective ballots have taken.
Newsmax added:
One reason the U.S. Supreme Court’s intervention seems inevitable is the differing legal viewpoints about whether Trump is required to be found guilty of the crime of “insurrection” before he can be deemed constitutionally ineligible for having “engaged” in one.
Brescia told the Examiner that Trump’s challengers have a higher burden than the former president when it comes to the ballot fight.
“It is much harder for the people who want to keep the former president off the ballot to win before the Supreme Court than it is for people who want him to stay on it,” Brescia said. “I think this is a triple bank shot where you’re sort of trying to jump the cue ball onto a neighboring table,” he added, using a billiards analogy.
CNN legal analyst Ellie Honig, a former assistant U.S. attorney, agrees.
“The 14th Amendment Section 3 says, in plain text, that if you shall have engaged in insurrection, you can’t be in office. She takes that to mean that if she determines that Donald Trump engaged in insurrection, he can’t be on the Maine primary ballot. Is it that simple?” CNN anchor John Berman said during a show segment last week after Maine Secretary of State Shenna Bellows decided to remove Trump.
“No, it’s not that simple. So, clearly, Section 3 of the 14th Amendment says engage in insurrection, you’re out. We all have that. The complicated part and where we are going to see this play out in the courts is who gets to decide and by what process,” Honig responded.
