The Maine Secretary of State’s Office held an eight-hour hearing last Friday concerning former President Donald Trump’s (R) ability to appear on the state ballot in 2024 after receiving three challenges last week, including one from former Portland Mayor Ethan Strimling.
Also challenging the former president’s ability to appear on Maine’s primary ballot in 2024 were Portland attorney Paul Gordon and resident Mary Anne Royal.
In response to these challenges, Rep. Mike Sobeleski (R-Phillips) filed a letter of intervention in defense of the former president, allowing him to speak at Friday’s hearing in favor of former President Trump’s eligibility to appear on Maine’s ballot next year.
The intervention applications of Michael Lake and John Fitzgerald were both denied by the Secretary of State on account of the fact that they were not present at Friday’s hearing, although they were later permitted to submit written statements so that their perspectives could be taken into account.
Toward the end of the Friday’s hearing, Secretary of State Shenna Bellows stated that she expects to issue a ruling by 5pm on Friday, December 22.
All parties are expected to submit legal briefs to the Secretary by Tuesday, December 19.
The primary arguments against Trump’s eligibility to appear on the ballot centered around the events that transpired at the Capitol on January 6, 2021. Generally speaking, the challengers made the case that Trump participated in an insurrection that day, thereby disqualifying him from the presidential race under Section 3 of the 14th Amendment.
Similar challenges have been issued in 32 other states across the country, most of which were also made on this same basis.
To date, no state has ruled in favor of those challenging Trump’s ability to appear on their ballot in 2024.
Section 3 of the 14th Amendment states:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Also relevant at Friday’s hearing was Article II, Section 1, Clause 5 of the Constitution, which outlines the eligibility requirements for the presidency, which reads:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
The challengers at Friday’s hearing argued that Maine Secretary of State Shenna Bellows has the authority to block Trump from accessing Maine’s ballot and ought to do so because — according to their understanding of the facts at hand — Trump took part in an insurrection on January 6, 2021, thereby disqualifying him for the presidency under Section 3 of the 14th Amendment.
Trump’s legal counsel, on the other hand, refuted each aspect of their interpretation, arguing that Bellows does not have the authority to block a federal candidate from accessing the state’s ballot and that, regardless of her authority, Trump could not be disqualified from the presidency under Section 3 anyway.
According to their interpretation of Section 3, the provision is inapplicable to the Office of the President. For the positions to which it does apply, they argued that it only prevents individuals from assuming an office — not running for it — as Congress has the ability to overrule a disqualification by a two-thirds vote in each chamber.
It is also important to note that Trump’s legal counsel strongly contested the allegation underlying the challengers’ claim that Trump engaged in or incited an insurrection on January 6, 2021.
Debating the Authority of the Maine Secretary of State
The first portion of Friday’s hearing was dedicated not to the merits of the claims being leveraged against Trump, but rather to Secretary Bellows’ legal and Constitutional authority — or lack thereof — to prevent a candidate from appearing on Maine’s ballot on account of being unqualified or otherwise ineligible.
In Support of Bellows’ Authority
Benjamin Gaines — one of the attorneys representing Strimling, Kimberley Rosen, and Thomas Saviello — argued that the Maine Secretary of State does in fact have the statutory authority to determine whether or not a candidate attempting to get on the state’s ballot is qualified for the office being sought.
According to Gaines, the Secretary’s scope of authority does not change based on the difficulty of the issue driving the controversy over an individual’s eligibility to seek or hold office.
Therefore, even in cases where questions would need to be answered in order to determine eligibility, the authority and responsibility would nonetheless rest upon the Secretary of State to make a determination.
Consequently, the attorney argued that under Maine law, it is necessary for the Secretary of State to evaluate the qualifications of candidates seeking various offices — regardless of whether these question involve substantive considerations or not.
Based on this logic, the attorney concluded that Secretary Bellows does have the necessary authority to determine if Trump is eligible to serve as President under Section 3 of the 14th Amendment and — if she believes he is not — to prevent him from appearing on the state’s ballot.
In Opposition to Bellows’ Authority
On the other hand, the former president’s counsel argued that the Maine Secretary of State does not have the authority to prevent Trump from accessing the state’s ballot on account of the prevailing legal theory concerning ballot access and the Constitutional provision at hand in today’s proceedings.
Their argument against the Secretary’s authority relied fundamentally upon the specific language used in Section 3 of the 14th Amendment.
Based on their analysis, the terms of this provision should not be understood as applicable to the President of the United States — thereby nullifying the possibility that Trump could be unqualified for office.
They further argued that regardless of the applicability of Section 3 to the Office of President, the Secretary of State still does not have the authority to bar Trump from accessing Maine’s ballot.
According to Trump’s attorneys, the disqualifications outlined in Section 3 of the 14th Amendment do not take effect until an individual is about to take office, at which time Congress has the authority to allow an individual to serve — despite their disqualification — by a two-thirds vote.
Consequently, it is impossible to know for sure at the outset of an election whether an individual would — or would not — be able to ultimately hold the office being sought as a result of an alleged Section 3 disqualification.
The attorneys argued that a Secretary of State may only have the authority to block an individual’s ballot access in cases where there is no factual dispute concerning whether or not a given qualification — as defined under Article II — is met.
For example, the Secretary could potentially have the authority to deny access to the ballot if an individual were to admit outright that he did not meet the Constitutionally-mandated age requirement for a particular office.
In Trump’s case, they noted, there is no such clear-cut discrepancy between the Article II qualifications — to which Trump attested when he submitted the form requesting access to Maine’s ballot — and the factual truth of the matter.
Therefore, given this line of thinking, the attorneys concluded that Secretary Bellows does not have the authority to block Trump from accessing the ballot in Maine on account of his alleged Section 3 disqualification — an accusation which the former president’s counsel strongly contests.
Evidence Presented and Witnesses Heard
Mary Anne Royal
Royal was the first challenger to speak during this phase of the hearing on Friday.
At the start of her remarks, Royal stated that she is not a lawyer or expert of any kind, but rather that is just an “ordinary citizen.”
In short, Royal argued that Trump violated his Presidential Oath of Office by way of both his action and inaction on January 6, 2021.
According to Royal, there is no federal or legal recourse against a president who violates his oath of office. Consequently, she argued, the responsibility falls to the states to prevent such an individual from appearing on their ballot.
Testifying “as a registered voter in Portland,” Gordon argued that Trump ought to be kept off Maine’s ballot on account of the fact that he represents himself as having already won two presidential elections.
Although Gordon stated that he personally does not believe that Trump won the 2020 presidential election, he contended that Trump has since represented himself as having been the winner of that race — thus making him ineligible on account of having been elected as president twice.
To open his testimony, Gaines played a clip from Trump’s inauguration in January of 2017 wherein he can be heard taking the Presidential Oath of Office.
Following this, Gaines presented several videos taken at Trump’s rallies, debates, media appearances, and press conferences that occurred while he was both a candidate and the President of the United States.
Throughout these clips, Trump can be seen reacting adversely to the presence of protestors during his speeches and calling for them to be removed from the room.
The videos introduced into evidence also depicted instances in which Trump discussed violent behavior in which others had engaged.
According to Gaines, these videos were intended to show a “pattern” of Trump encouraging his supporters to take part in “violent behavior,” as well as “condoning and applauding” violence.
Gaines then showed a series of video clips wherein Trump speaks to the validity of the 2020 election and the transfer of power from himself to President Joe Biden (D).
The next series of video clips presented by Gaines were taken on January 6, 2021, and, as Gaines explained, were intended to illustrate the “violent reaction of the crowd.”
These videos represented just a fraction of the hundred-plus pieces of evidence that was submitted by the challengers for consideration by the Secretary.
Prof. Gerard Magliocca Testifies
Prof. Gerard Magliocca, a professor at the Indiana University McKinney School of Law, was brought in to testify by James Kilbreth — another attorney representing Strimling, Rosen, and Saviello in their challenge.
Scott Gessler — one of the attorneys representing Trump at the proceedings — then came forward to question Prof. Magliocca on his background and expertise.
Gessler then issued an objection to the professor’s testimony, arguing that it is “opinion testimony” that does not speak to the “truth or falsehood” of any issue under consideration.
It was also contended by Gessler that Magliocca’s testimony would amount to legal opinion concerning the meaning of the 14th Amendment, and the Secretary ought not accept evidence as to what the law means.
Secretary Bellows overruled the objection from Trump’s attorney with the condition that Magliocca only offer testimony on the amendment’s history, not any insight as to its meaning.
Gessler then registered a continuing objection to Magliocca’s testimony on the grounds that much of what the professor is expected to discuss should be understood as amounting to legal interpretation.
After offering a lengthy history of the 14th Amendment’s development, Magliocca argued that there is no historical indication that the presidency was intended to be excluded from disqualification under Section 3.
Several times while Magliocca was speaking, Gessler issued additional objections on the grounds that the professor’s statements were “far afield” of providing the kind of historical context permitted by the Secretary. Each time, Bellows “noted” his objections but then moved to overrule them.
Before Trump’s counsel proceeded to cross-examine Magliocca, Bellows asked the professor if any state had ever used Section 3 to prevent a candidate from accessing the ballot.
In response, he explained that there had not, as balloting laws have changed significantly over time. The closest example he could recall was from 1868 when the governor of Georgia refused to certify someone to office on account of Section 3.
Gessler then cross-examined Magliocca, opening with a line of questions related to the sources underlying the professor’s testimony, emphasizing that he did not have an adequate amount of time to review these prior to the proceedings. Ultimately, it was agreed upon that Magliocca would provide a list of citations referenced in his testimony by midnight of that day.
Gessler also embarked upon a line of questioning that served to underscore the lack of historical precedent concerning a state’s authority to block a federal candidate from obtaining ballot access.
On redirect, Magliocca was asked by the challengers’ attorney if there had ever been “an insurrection like January 6th that might trigger such a request” for a candidate to be removed from the ballot, to which the professor responded that there has not.
The professor also noted that there is no historical precedent for Section 3 only being enforced after an individual had been elected because the issue “just didn’t come up.”
In response to a question from Bellows, Magliocca went on to explain that there have been cases where individuals were “not seated” as a result of disqualification under Section 3 after having been appointed to the Senate — roughly analogous to running for and winning an election, as Senators were appointed, not elected, during this period of American history.
Additional Questions for Challengers from Secretary Bellows
Bellows asked the challenger’s legal team what Section 3 of the 14th Amendment “explicitly prohibit[s].”
Kilbreth responded by stating that it “prohibits anyone from running or becoming president if they have engaged in insurrection against the constitution.”
The Secretary followed up by asking if this meant the challengers believed such a candidate could not appear on a primary ballot.
Kilbreth responded affirmatively, arguing that allowing such a person on the ballot would “encourage people to vote for a candidate who cannot hold the office.”
“That just creates the kind of chaos that everybody would like to avoid,” Kilbreth said.
Bellows also pushed Kilbreth on the issue of whether Section 3 is applicable to the presidency, to which he responded that it is “absolutely definitive” that it does.
She also asked the attorney if it is within the scope of Section 3 for a state official to determine disqualification on account of having engaged in insurrection. In response, Kilbreth stated his belief that she has “full power” to make such a decision.
“Courts are not the only ones who decide facts,” Kilbreth said. “Agencies decide facts.”
Rebuttal from Trump’s Counsel
“There is no textual authority in Section 3 that provides authority for anyone to prevent someone from running for office,” Gessler said, noting that recent legal precedent also echoes this interpretation.
“It would be somewhat nonsensical for fifty different jurisdictions,” Gessler said, “to have a whole multiplicity of different approaches, and decisions, and evidentiary standards, and where a person, President Trump, could run in some states under Section 3, but he can’t run in other states under Section 3.”
“So, that does create chaos in the electoral system,” Gessler concluded.
Gessler also spoke, once again, to the applicability of Section 3 to the presidency, arguing that its language construction clearly points toward an intention to exclude the presidency from disqualification under this provision.
Trump’s attorney also argued that Trump never “incited,” nor “engaged” in, insurrection — actions that Gessler argued to be legally distinct — consequently nullifying the foundation of the case made by the challengers against the former president.
Rep. Mike Soboleski
Soboleski opened his remarks by playing a three-minute video clip contrasting Trump’s remarks concerning his support for “law and order” against those made by Democrat figures invoking violent and inflammatory rhetoric.
“I’ve heard the word incitement and incite many, many, many times today — dozens and dozens of times,” Soboleski said. “I think that video right there stands as proof that inciting violence is subjective.”
“The only thing that’s missing in this room is the voice of the public, the voice of the people I represent,” Soboleski said. “I rise to speak on behalf of the voters of Maine that I represent in opposition to the positions before us.”
“Our people deserve an electoral process that is fair and simple,” Soboleski argued.
The state representative and congressional candidate argued that removing Trump from the state’s ballot would deprive Maine voters of the right to exercise their “free and fair franchise” in casting a ballot for the candidate of their choice in the primary election.
“This is tantamount to lawfare, plain and simple,” Soboleski concluded.
At the end of Friday’s hearing, Royal offered brief closing remarks, reiterating her standing not as a lawyer or expert, but as a citizen of Maine.
Her closing statement revolved primarily around the discussion concerning Section 3 of the 14th Amendment. Royal argued against Magliocca’s interpretation of the clause in Section 3 referring to the provision of “aid or comfort” to “enemies” of the United States as referring solely to foreign enemies, suggesting instead that it ought to be understood to encompass any “enemies of the Constitution of the United States” — a descriptor she then applied to those who participated in the events that took place at the Capitol on January 6, 2021.
Gordon — the attorney from Portland challenging Trump’s access to the ballot — then issued his closing remarks, during which he made two primary points.
First, Gordon argued that while the United States does operate on the basis of the democratic process, the Constitution “withdraws some issues” from that process.
Secondly, Gordon noted that he is not concerned about the possibility that “chaos” will result from having each state offering its own interpretation of Section 3, as he expects these decisions would ultimately be appealed to higher legal authorities that would ultimately produce a single ruling on the issue.
The former president’s legal counsel agreed with the attorneys representing Strimling, Rosen, and Saviello in their challenge to not make closing remarks as part of Friday’s hearing.
Legal briefs are expected to be submitted to the Secretary of State’s Office by all parties before the end of the day on Tuesday, December 19.
Bellows stated Friday that she intended to issue her decision on Trump’s eligibility to appear on the state’s primary ballot by 5pm on Friday, December 22.
Maine’s presidential primary election is scheduled to take place on March 5, 2024.