by Emma Davis, Maine Morning Star
December 22, 2023
Those challenging former President Donald Trump’s primary election eligibility in Maine see the decision out of the Colorado Supreme Court this week as validation of their argument and urge Maine to reach an identical ruling.
Trump’s counsel says the Colorado decision isn’t relevant, arguing that decision is not “final” and that Maine challenges are a separate matter since they were brought under different state laws and procedures.
In briefs filed Thursday evening, litigants weighed in on whether, and how, the Colorado decision should impact the ruling expected to be issued by Maine Secretary of State Shenna Bellows early next week.
The Colorado Supreme Court ordered Trump to be barred from the state’s 2024 presidential ballot on Dec. 19, under a Civil War-era insurrection clause in the 14th Amendment that two of the three challenges to Trump’s eligibility in Maine have also cited.
Section 3 of the 14th Amendment of the U.S. Constitution prohibits anyone who took an oath to uphold the Constitution and then “engaged in insurrection or rebellion” from holding office in the U.S. The challengers argue Trump cannot hold office because he engaged in insurrection when he incited people to attack the Capitol on Jan. 6, 2021.
Proceedings for Maine’s hearing, which began Dec. 15, had essentially wrapped by the 19th, when the challengers and Trump’s counsel had submitted their closing arguments as briefs. After Colorado’s decision, however, Bellows invited the parties to submit supplemental briefs addressing the impact, if any, the Colorado decision has on the arguments they’ve presented.
The burden of proof falls on the challengers, who must provide “sufficient evidence” in order to invalidate the petition. The other challenge in Maine argues Trump is ineligible under the 22nd Amendment, which outlines term limits, because the former president has maintained that he won the 2020 election.
Several other states have also seen challenges to Trump’s eligibility, mainly citing the 14th Amendment argument, but Colorado is the first to rule in favor of challengers. The ruling in Colorado is expected to be appealed to the nation’s highest court.
Colorado’s relevancy in Maine, as argued by both sides
Counsel for the former Maine elected officials who submitted one of the 14th Amendment challenges filed a brief Thursday night outlining why they believe Colorado’s decision should impact what happens in Maine. This challenge came from former Portland mayor Ethan Strimling, a Democrat, and former Republican state Sens. Kimberley Rosen and Thomas Saviello.
Counsel for Trump — Portland attorney Benjamin Hartwell and outside representation Scott Gessler and Gary Lawkowski — also filed a brief Thursday, arguing the opposite.
Both the challengers and Trump’s counsel focused largely on the issue of collateral estoppel in their briefs.
Sec. of State Bellows hears arguments for and against challenges to Trump’s ballot eligibility
Collateral estoppel, or issue preclusion, prevents the relitigation of factual issues already decided in an earlier proceeding.
The challengers argue the U.S. Constitution requires Maine to apply collateral estoppel to the judgements of other state courts and therefore requires Bellows to follow the Colorado courts’ factual determinations.
Trump’s counsel argues collateral estoppel does not apply, because the challengers in Colorado and Maine are different, as are the state laws and procedures under which the challengers sought relief.
The fairness and finality of the Colorado decision also factored into the argument from Trump’s counsel. His counsel argues that Colorado’s ruling shouldn’t be considered a “final judgment” because it included a stay of the court’s order until Jan. 4, or until the outcome of a widely anticipated appeal to the U.S. Supreme Court is decided.
The ruling from Colorado read, “If review is sought in the Supreme Court before the stay expires on Jan. 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court.”
Additionally, Trump’s counsel argues in their brief that Trump did not have a full and fair opportunity to litigate the facts in the Colorado case, so collateral estoppel does not apply. Quoting dissent from the majority opinion in Colorado, they wrote, “the truncated procedures and limited due process provided by [Colorado law] are wholly insufficient to address the constitutional issues currently at play.”
Separately, counsel for Trump outlined an argument as to why the Colorado case should have no bearing in Maine that has nothing to do with the Colorado case at all.
Trump’s counsel wrote in their brief that Maine law does not allow the Secretary of State to remove Trump from the ballot. Instead, they argue, only the three qualifications for the office of the presidency matter — a point his counsel also emphasized during the Dec. 15 hearing when they asked the challengers whether they believed Trump met those qualifications of age, residency and natural born citizenship.
Aside from the collateral estoppel arguments from the challengers, their brief also argued that the Colorado decision is the “best persuasive authority” on the matter. Because the challengers used much of the same evidence as the Colorado case, including the same expert witness, Bellows should reach an “identical or substantially similar” conclusion, the challengers wrote.
These supplemental briefs from both sides of the litigation are the last filings expected before Bellows will issue her ruling on Trump’s eligibility for Maine’s presidential primary election, scheduled for March 5, or “Super Tuesday.”
Maine Morning Star is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Maine Morning Star maintains editorial independence. Contact Editor Lauren McCauley for questions: info@mainemorningstar.com. Follow Maine Morning Star on Facebook and Twitter.
