[UPDATED: Wednesday evening, the Maine Supreme Court ruled that the U.S. Supreme Court will have the final say on whether former President Donald Trump is eligible to appear on Maine’s presidential ballot.]
Secretary of State Shenna Bellows filed a memorandum Tuesday with the Maine Supreme Court defending her right to appeal the Superior Court’s decision ordering her to revisit the removal of former President Donald Trump from the state’s primary ballot after the Supreme Court weighs in on the matter.
The memorandum also asks the Maine Supreme Court to consider the merits of the case at this stage in the judicial process instead of waiting for a potential future appeal to bring a final judgement before them for deliberation.
Because the Superior Court’s ruling was “interlocutory” — or non-final and requiring further action — it falls under a category of decisions that are generally not appealable, according to an order given by the Maine Supreme Court.
Consequently, the parties were ordered by the Court to each submit a memorandum explaining why they either should or should not proceed with consideration of the appeal.
According to Superior Court’s Order and Decision — the subject of Bellows’ appeal — “the Secretary and all the parties in this case” agreed that her ruling “should continue to be stayed pending the United State’s Supreme Court’s decision in Trump v. Anderson.”
Trump v. Anderson is the case out of Colorado in which that state’s Supreme Court blocked the former president from appearing on the Colorado primary ballot, prompting Trump to appeal their decision to the United State’s Supreme Court.
Just two days after the former president requested the Court to review the ruling, cert was granted. Oral arguments are scheduled for February 8, 2024.
Supporting Bellows in her effort to appeal the Maine Superior Court’s remand are challengers Kimberly Rosen, Thomas Saviello, and former Portland mayor Ethan Strimling who filed a memorandum with the Maine Supreme Court largely echoing many of the arguments made by the Secretary.
Former President Trump also submitted a memorandum Tuesday, pushing back against Bellows’ interpretation of the law, arguing that reconsideration of the Superior Court’s remand would not be appropriate due to the interlocutory nature of the decision and suggesting that none of the defined exemptions can properly be applied in this case.
Authority to Appeal the Superior Court’s Remand
Bellows contends in her memorandum that her appeal of the Superior Court’s remand is “expressly authorized” under state law.
Because the statute governing primary petition challenges — Title 21-A, Section 337 — specifically allows “[any] aggrieved party [to] appeal the decision of the Superior Court, on questions of law, by filing a notice of appeal within 3 days of that decision,” Bellows contends that “this appeal should accordingly be permitted.”
Trump, on the other hand, argues that Rule 80C — the state rule of procedure under which the former president brought his initial appeal of Bellows’ ruling — explicitly prohibits “an order of remand from the Superior Court” from being appealed “absent special circumstances.”
“By definition the Superior Court’s decision to remand is not a final judgement,” the memorandum states. “There is still more to do. Indeed, it precisely fulfills the underlying purposes of Rule 80C. Remand serves judicial economy and prevents Maine’s courts from wasting time and effort on federal questions that will soon be resolved by the Supreme Court.”
Bellows also takes issue with the potentially protracted timeline that may result from her being required to revisit Trump’s removal from the ballot after the United States Supreme Court weighs in on many of the questions presented in this case.
She argues in her memorandum that Section 337 prescribes a specific timeline to which the adjudication of primary petition challenges must adhere and the Superior Court’s remand “undermine[s] this carefully constructed timeline.”
“The Superior Court here, for example, remanded the case on the deadline for its decision with instructions that the Secretary wait for the Supreme Court of the United States to rule in Trump v. Anderson,” the memorandum states.
“Oral argument in Anderson is scheduled for February 8, 2024,” Bellows continues. “Therefore, even if the Supreme Court issues a decision in Anderson within a few days of oral argument, if that decision does not direct an outcome in this case — and it may not — the Superior Court’s remand will result in an almost complete restart of the Section 337 process in mid-February at the earliest, more than two months after the challenges in this case were filed and just days before the March 5 primary election to which those challenges pertain.”
The Death-Knell Exemption
Bellows went on to explain in her memorandum why she believes that “beyond express statutory authorization, an interlocutory appeal is also permissible in this case under two exceptions to the final judgement rule.”
The first exception cited by Bellows is the “death-knell” exemption, which allows for an interlocutory ruling to be appealed if “awaiting a final judgement will cause substantial rights of a party to be irreparably lost,” which she contends would happen in this case as a result of the impending March 5 primary.
“If the Supreme Court’s decision in Anderson does not direct an outcome in this case, it will leave, at most, only a few weeks for the Secretary to reconsider her Ruling and for appellate review of that reconsidered Ruling,” the memorandum states. “If that comes to pass, not only will voters have to cast their ballots without certainty as to whether a vote for Mr. Trump will be counted, but also the Secretary will be in the untenable position of determining how to tabulate election returns where one candidate’s qualification remains in doubt.”
“In short,” the memorandum concludes, “because the Superior Court’s remand order may delay a final resolution of this case until near — or after — election day, an immediate appeal is necessary to prevent imminent harm not only to voters, but to the Secretary’s ability to administer the primary election on March 5.”
Conversely, Trump argued that the death-knell exemption is not applicable to the Secretary’s appeal because Bellows “faces no threat of an imminent, concrete, and irreparable injury.”
According to the former president, Bellows’ agreement to stay the effect of her ruling until the United States Supreme Court rules in Anderson causes “any claim of irreparable harm at this stage [to ring] hollow in light of this agreement.”
Trump also suggested in his memorandum that Maine’s use of ranked choice voting “also eliminates any harm” if he is “ultimately disqualified” because “Maine officials can retabulate the ranked choice ballots to determine the winner by looking to the second and subsequent choice candidates.”
The former president went on to argue further that he, as well as Maine voters, “would face irreparable harm” if the state Supreme Court proceeds with consideration of the appeal in two ways.
First, Trump suggested that weighing in on the appeal would “create confusion from differing opinions before or during the pendency of the election”
Second, Trump argued that should the Maine Supreme Court rule against him and the United States Supreme Court rule in his favor, it would result in his having been “improperly removed from the ballot before the election, depriving Maine voters of a valid choice for president, and illegally depriving President Trump the opportunity to stand before Maine voters as a candidate.”
The Judicial Economy Exemption
Bellows also argues in her memorandum that the “judicial economy” exemption is applicable to her appeal because a “review of the Superior Court’s Order and Decision can and should result in final disposition of the case,” thereby completing “the last step in the Section 337 process.”
“The Superior Court has had its opportunity to issue a decision,” the memorandum contends. “If this Court decides to hear her appeal, the Secretary intends to urge the Court to vacate the remand and, as required by Section 337(2)(E), issue a decision on the merits of (and affirm) the Secretary’s Ruling by January 31, 2024.”
“Finality in this case, at the earliest possible moment, is essential to promoting voter confidence and ensuring that the Secretary can administer the election — and tabulate its results — in an orderly fashion,” the filing says.
“Even if the Supreme Court decides Anderson in a way that directs the outcome in this case, seeing the Section 337 process to its conclusion consistent with that statute’s timeline ensures that the question of Mr. Trump’s qualification for the primary ballot in Maine will be settled, at the latest, concurrently — or nearly so — with the decision in Anderson, rather than weeks later,” the Secretary’s memorandum concludes.
Trump argued in his memorandum, however, that reversing the Superior Court’s remand [would not dispose of the entire litigation,” but would actually “require further litigation.”
“With the pendency of Anderson, this is not a case in which this Court can issue a final, or practically final, disposition of the entire litigation in the Secretary’s favor,” the memorandum states, “Accordingly, the Superior Court properly remanded the case for the Secretary to apply the facts and confusions of the law consistent with the Supreme Court’s upcoming decision in Anderson.”
“The Superior Court’s decision to remand is not a final judgement and there is no compelling reason to depart from the general rule that only final judgements are appealable. To the contrary, judicial economy is best served by allowing the Secretary to reconsider her Ruling in light of the forthcoming U.S. Supreme Court decision in Anderson,” the former president’s memorandum concludes.
It remains to be seen how the Maine Supreme Judicial Court will ultimately rule on the potential dismissal of the Secretary’s appeal.
Maine’s presidential primary is scheduled to take place on Super Tuesday, which is set for March 5, 2024.
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