Maine’s secretary of state has now joined the majority of Colorado’s Supreme Court in concluding former President Donald Trump is ineligible to serve as president (again) under Section 3 of the 14th Amendment.
This means Trump is 0-2 in states that have analyzed the 14th Amendment constitutional question. Both Colorado and Maine have now found that the events of Jan. 6, 2021, amounted to an insurrection, that Trump engaged in or gave aid or comfort to those who engaged in the insurrection, and that Section 3 applies to the office of the president.
Trump is 0-2 in states that have analyzed the 14th Amendment constitutional question.
The Colorado ruling is likely headed to the U.S. Supreme Court, after the Colorado GOP on Wednesday petitioned the justices to decide whether Trump should be disqualified from the state primary ballot. As I have written previously, even if the high court does take up this case, it could sidestep the constitutional question at the center of this controversy and rule on narrower grounds. But the decision by Maine’s top election official should push the Supreme Court to acknowledge the fact that 100% of the states to rule on this constitutional question have ruled against Trump. Their factual and legal findings should be entitled to some deference by the nation’s high court.
Colorado and Maine are not the only states that considered challenges to Trump’s eligibility. Michigan, Arizona, Minnesota and to a certain extent California have all dealt with challenges and opted to keep him on the ballot. But those cases shouldn’t be viewed as legal triumphs for Trump. In each example, the decisions were based on procedural grounds and confined to the primary ballot, not the general election ballot. These decisions, simply put, should provide no solace for any Supreme Court justices seeking to overturn the decision of the Colorado Supreme Court.
In Michigan, the state Supreme Court ruled that this isn’t the type of question they, as judges, should weigh in on. The state’s high court simply followed the lead of the appellate court that concluded that “[w]ho to place on the primary ballot is determined by the political parties and the individual candidates.” This is essentially just the Michigan Supreme Court yelling “not it!”
Similarly, in Arizona, the federal judge reviewing a challenge to Trump’s eligibility never confronted the key legal argument. Instead, the judge concluded that the long-shot presidential candidate who brought the case lacked the legal standing to do so, and the case was dismissed. Based on the court’s reasoning, President Joe Biden could file a challenge to Trump’s eligibility for the general election ballot if both men become their party nominees.
And in Minnesota, once again we have a ruling in which the person or body hearing the challenge failed to rule on the legal merits. There, the state’s Supreme Court ruled that there was no state law barring “a major political party from placing on the presidential nomination primary ballot, or sending delegates to the national convention supporting, a candidate who is ineligible to hold office.” This ruling applies only to presidential primaries, and also leaves open the possibility of a challenge to Trump’s eligibility for the general election ballot. Finally, in California this week, Secretary of State Shirley Weber declined to pursue the issue despite pressure from fellow state Democrats. Weber did not provide a rationale for her decision. It’s certainly possible that she, like many other election officials and judges throughout the country, is waiting on guidance from the U.S. Supreme Court. The question of whether Trump is eligible to be president again cries out for resolution. All roads lead back to First Street, in Washington, D.C. The question of whether Trump is eligible to be president again cries out for resolution. The Supreme Court is the last word on federal law, including the Constitution, and should provide candidates, lower court judges, and state election officials with a road map for tackling Trump’s eligibility as we hurtle toward November. The Supreme Court should acknowledge that the judges and election officials who confronted the legal question of Trump’s eligibility for the presidency are not divided. The decisions in the states that opted to allow Trump to appear on the primary election ballot were based on procedural reasons, not on any analysis of the 14th Amendment. The two substantive legal decisions grappling with insurrection and Section 3 of the 14th Amendment have both gone against Trump. And the Supreme Court should follow their lead.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
