The Maine Misadventure

National Review Online

Saturday, December 30, 2023

 

Theodore Roosevelt’s attorney general once sardonically commented to his impetuous boss, who was on the verge of a headlong decision, “Ah, Mr. President, why have such a beautiful action marred by any taint of legality?”

 

By the same token, Maine Secretary of State Shenna Bellows wasn’t going to allow her decision to strike Donald Trump from the state’s ballot to be marred by any taint of disinterested legal reasoning or nonpartisanship.

 

Acting as judge, jury, and executioner regarding Article 3 of the 14th Amendment banning from office anyone who has engaged in an insurrection against the United States government, Bellows held a hearing for several hours a couple of weeks ago before deciding to prohibit Trump from running in Maine. She thus follows in the dubious footsteps of the Colorado supreme court.

 

Even if Bellows has the authority to act in the manner she has — a proposition disputed by numerous scholars — it is a dangerous power that must be exercised with extreme care. Instead, like the Colorado court, she advances a conveniently broad interpretation of insurrection, joined to a conveniently broad interpretation of “engaged,” to get the result presumably most welcome to her as a partisan Democrat and fierce Trump critic.

 

Her act is put into unflattering relief by the nearly simultaneous decision of the California secretary of state to keep Trump on the ballot in the Golden State, where Governor Gavin Newsom has said the right way to defeat Trump is at the ballot box (although that’s easy to say in a state Trump loses by 30 points).

 

In a post-decision interview, Bellows boasted about Maine’s commitment to voting rights and its high levels of voter participation. This obviously sits uneasily with her determination that the primary candidate that most Republicans probably want to vote for in a couple of months can’t be an option. And it is more consequential than the decision in Colorado, because Trump actually won one of Maine’s four electoral votes in the 2016 and 2020 elections. Being denied that could decide the 2024 general election. Indeed, the newfound progressive appreciation for the limits the Constitution puts on the exercise of our democracy is rich coming from people who get the vapors any time someone says, correctly, that we are a constitutional republic not a democracy.

 

The fundamental problem with the Maine and Colorado decisions is that they are mistaken as a matter of law — and not in a merely technical way, but in one that strikes at the heart of self-government. This latest misadventure should provide more incentive for the Supreme Court to rule on the underlying questions at issue, and ensure that these extremely consequential ballot decisions are influenced by much more than a taint of legality.