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The campaign to have former President Donald Trump removed from the ballot over his efforts to remain in power after the 2020 election has kicked into high gear, with decisions in two states, Maine and Colorado, barring him from the primary ballots.
Challenges are still underway in many more states, based on an obscure clause of a constitutional amendment enacted after the Civil War that disqualifies government officials who “engaged in insurrection or rebellion” from holding office.
Over the years, the courts and Congress have done little to clarify how that criterion should apply, adding urgency to the calls for the U.S. Supreme Court to weigh in on the politically explosive dispute before the upcoming election.
Here’s what to know about the challenges.
Which states have already decided the matter?
The Maine secretary of state said Thursday that Trump did not qualify for the Republican primary ballot there because of his role in the Jan. 6, 2021, attack on the U.S. Capitol. She agreed with a handful of citizens who claimed that he had incited an insurrection and was thus barred from seeking the presidency again under Section 3 of the 14th Amendment of the Constitution.
In a written decision, the secretary of state, Shenna Bellows, a Democrat, said that while no one in her position had ever barred a candidate from the ballot based on Section 3 of the amendment, “no presidential candidate has ever before engaged in insurrection.”
Hours later, the secretary of state in California announced that Trump would remain on the ballot in the nation’s most populous state, where election officials have limited power to remove candidates.
In Colorado, the state Supreme Court decided last week in a 4-3 ruling that the former president should not be allowed to appear on the primary ballot there because he engaged in insurrection. The ruling did not address the general election.
The justices in Colorado said that if their ruling were to be appealed to the U.S. Supreme Court, then Trump would be allowed to remain on the ballot until the high court decided the matter. The Colorado secretary of state has said that she will follow whatever order is in place on Jan. 5, when the state must certify ballots for the election.
On Wednesday, the Colorado Republican Party said it had asked the Supreme Court to hear an appeal of the Colorado decision.
In Michigan and Minnesota, the courts have ruled that election officials cannot prevent the Republican Party from including Trump on their primary ballots. But both decisions left the door open for new challenges to bar him from the general election ballot.
Where else are there challenges to Donald Trump’s appearing on the ballot?
Lawsuits seeking to remove Trump from the ballot were filed in about 30 states, but many have been dismissed; there are active lawsuits in 14 states, according to a database maintained by Lawfare, a website about legal and national security issues.
Those states are: Alaska, Arizona, Nevada, New Jersey, New Mexico, New York, Oregon, South Carolina, Texas, Vermont, Virginia, West Virginia, Wisconsin and Wyoming. (A judge has dismissed the Arizona suit but the dismissal is being appealed.)
What are the challenges about?
At the heart of the disqualification efforts is the 14th Amendment of the Constitution, which was adopted in 1868 and has a section that disqualifies former government officials who have betrayed their oaths by engaging in “insurrection or rebellion” from holding office. The provision, Section 3, was intended to bar Confederate officials from serving in the U.S. government.
The provision specifically says that anyone who served as “an officer of the United States,” took an oath to support the Constitution and then “engaged in insurrection or rebellion” shall not hold any government office. It includes a provision that Congress can waive the prohibition with a two-thirds vote in the House and Senate.
With the legal challenges mounting, the U.S. Supreme Court is widely expected to take up the issue, and experts say the scope of the decision would determine if the challenges are quickly handled or play out for months.
Ashraf Ahmed, a professor at Columbia Law School who studies election law, said that if the Supreme Court heard the case, it could avoid delving into the weightiest matters, like defining Section 3. Instead, he said, the justices might issue a ruling largely on procedural grounds.
What states might decide the matter next?
A decision is expected soon in Oregon, where the same group that filed the Michigan lawsuit, Free Speech for People, is seeking to have the state Supreme Court remove Trump from the primary ballot there. In that case, the secretary of state has asked the court to expedite its consideration of the case because she must finalize the primary ballot by March 21.
John C. Bonifaz, the president of Free Speech for People, said the group planned to file new challenges in other states soon, though he declined to share which states.
Free Speech for People has also directly asked the top election officials in all 50 states, as well as in Washington, D.C., to remove Trump from the ballots in those states.
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