Maine Shenna Bellows is a profile in courage

Boston Globe opinion echo by Laurence Tribe and Carl M. Loeb:

Maine Secretary of State Shenna Bellows

On December 28, 2023, Maine became the second state in the nation to order Donald Trump removed from its presidential primary ballot. Following the December 19, ruling from the Colorado Supreme Court, Maine Secretary of State Shenna Bellows issued a 34-page decision that concluded: “The U.S. Constitution does not tolerate an assault on the foundations of our government, and [Maine law] requires me to act in response.”

Bellows’s decision enacted, in word and in deed, the too rarely remembered reality that the fair interpretation and faithful application of statutory as well as constitutional law is entrusted no less to executives than to judges — and that the US system for electing presidents expressly empowers state legislatures to decide how each state’s selection is to be made. And she deliberately refused to abdicate her responsibility to make a call, a responsibility that her state’s Legislature specifically delegated to her:

“The oath I swore to uphold the Constitution comes first above all, and my duty under Maine’s election laws … is to ensure that candidates who appear on the primary ballot are qualified for the office they seek.”

She did so in the face of predictable threats that came quickly after Trump posted her biographical data online. What once would have been simple allegiance to the law has become a profile in courage.

Bellows’s opinion approaches her responsibility with exemplary humility. In holding Trump disqualified under the 14th Amendment, she writes:

“I do not reach this conclusion lightly. Democracy is sacred … I am mindful that no Secretary of State has ever deprived a presidential candidate of ballot access based on Section Three of the Fourteenth Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection.”

“No person shall … hold any office … under the United States … who, having previously taken an oath, as … an officer of the United States … to support the Constitution … shall have engaged in insurrection or rebellion against the same.”

In fairness and legal acumen, the secretary of state’s opinion plays no second fiddle to model judicial opinions. The ruling slices easily through meritless contentions from both sides.

For example, one petitioner argued that because Trump claims he won the 2020, election (without any evidence to support this false claim❗), he should be disqualified under the 22nd Amendment. It bars presidents from being elected more than twice.

The secretary of state deftly rejected that attempt to hoist Trump on his own petard:

“That Mr. Trump has falsely asserted that he won the 2020, election is no more disqualifying than it would be for him to proclaim that he is not a United States citizen. … [P]olitical grandstanding does not trigger the bar of the Twenty-Second Amendment.”

Basing her decision firmly on written submissions and testimony, Bellows minces no words on the question of whether Trump engaged in an insurrection or rebellion:

“[T]he record establishes that Mr. Trump, over the course of several months and culminating on January 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020, election and the peaceful transfer of power.”

Her decision adds to the record a second state’s adjudication that Trump is an insurrectionist, but it also contributes noteworthy conclusions of its own.

First, in rejecting Trump’s free speech claim, Bellows does more than say that deliberately inciting violence is not protected by the First Amendment. She states that “Mr. Trump cites no precedent — and I am unaware of any — that permits the First Amendment to override a qualification for public office.”

Think about what she’s pinpointed. Trump is, at bottom, claiming that the First Amendment entitles former officeholders to break their oath to support the Constitution by scheming to overturn it and keeping their distance from the physical violence they foment. Upholding that claim would render the key democracy-protecting provision of the 14th Amendment a nullity for insurrection masterminds. It would turn the First Amendment into a doomsday device for democracy.

Second, Bellows puts explicitly on the record a plainspoken explanation about how the sequence of events culminating in the Capitol siege was a rebellion against the Constitution and its foundational principle:

“The events of January 6, 2021 were unprecedented and tragic. They were an attack not only upon the Capitol and government officials, but also an attack on the rule of law.”

In our republic, courts ultimately decide contested questions vital to the rule of law, and the secretary of state was properly deferential to them. Bellows “suspend[ed] the effect of [her] decision until the Superior Court rules on any appeal.”

Gratuitously delaying his request for the Supreme Court to review the Colorado Supreme Court’s disqualification ruling — Trump took 15 days to file his predictable petition for review — Trump played for time while the officials in Maine and elsewhere played by the rules.

While we await Bellows’s appeal and the Supreme Court’s inevitable decision to grant review in the Colorado case, Bellows’s decision stands as a paradigm. We are all witnesses to how a fearless public official exercises her delegated state authority in our Constitution’s intricate federal system.

Laurence H. Tribe is the Carl M. Loeb University professor emeritus at Harvard Law School. Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.