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Challenging Trump on the ballot

ADRIAN MA, HOST:

It's been another big week of news for next year's presidential election. Maine became the second state to disqualify former president and current Republican front-runner Donald Trump from its primary ballot. That decision was made by Maine's secretary of state, Democrat Shenna Bellows. And to explain why, she cited a provision in the 14th Amendment, which was written right after the Civil War. And this provision prohibits a person from holding office if they've engaged in insurrection against the United States. Shenna Bellows says Trump's attempts to overturn the 2020 election count as insurrection, and therefore, he's disqualified. Now, earlier this month, Colorado's state Supreme Court disqualified Trump from its primary ballot for the same reason, and there are currently lawsuits percolating in more than a dozen other states making the same argument.

All of this, of course, raises some pretty thorny questions of constitutional law, and many legal experts are calling for the Supreme Court to weigh in. So just to help us right now navigate this legal thicket, we're joined by constitutional law professor Harry Litman. He was also a deputy assistant attorney general during the Bill Clinton administration. Harry Litman, thanks for joining us.

HARRY LITMAN: My pleasure. Thanks for having me, Adrian.

MA: So, Harry, from a legal point of view, what is your reaction to Maine's secretary of state's decision to disqualify Trump from its primary ballot?

LITMAN: Well, I think the big point is just that they were number two. And in terms of the Supreme Court, the fact of inconsistency, a patchwork pattern in the States overall, I think it's likely to, you know, give them the heebie-jeebies, as it were. And I think it will exert considerable pressure on the court to try to have a principle of federal law that applies across the board.

MA: I guess it's worth noting that not every state where election officials have been asked to disqualify Trump from their primary ballots have done so. States like Michigan, California and Minnesota opted to keep Trump on the ballot. Can you explain the reasoning there?

LITMAN: Each of the states - there are a handful, you're right - who have declined have basically punted. California most recently just said - the secretary of state there said, well, this this is more complicated than whether someone's 35 or not. And, you know, and it is. But I think the response to that by the Maine secretary of state is more persuasive - yeah. It's complicated. So I got to roll up my sleeves and do the best job I can, and maybe it'll be reversed up the line.

MA: As far as the states that have disqualified Trump from their ballots so far, Maine and Colorado, the Trump campaign says it's going to appeal both those decisions. Both are expected to eventually end up before the U.S. Supreme Court. And if it does, how do you think the Supreme Court will approach these cases?

LITMAN: I think they'll really be casting about for a rule that does two things. First, it gives a uniform federal solution. The second thing they want to do, if possible, is avoid the kind of eyesore of a case like Bush v. Gore, where there was a divided court and really adding to the unfortunate impression that a lot of people in the country now have that the Supreme Court is politicized. Certainly, Chief Justice Roberts will really want to make the court seem, in this kind of weighty issue, relatively or totally unanimous the way they were, say, in U.S. v. Nixon, which has a lot of parallels. I do think the court's strong instinct will be, gosh, we don't want a solution that has a patchwork pattern where some states have them on the ballot and some states don't. That's just ugly.

MA: So there's not actually a lot of time before we get to the 2024 election. What does that make you think in terms of a potential timeline for the Supreme Court addressing these ballot exclusion questions?

LITMAN: Well, we know for sure they're going to be asked to do it in an expedited fashion, kind of hyper expedited. So what does that mean kind of concretely? For Supreme Court, you can look to, say, the Nixon case, where they went into sort of warp speed because of the importance of the question. And from petition to decision was, say, a couple months, whereas normally, it would be more like, you know, a year and a half. So something like that - they'll be asked to go even faster, and they'll set their own schedule, of course. But I think they'll go into kind of, you know, overdrive, and that will mean a decision from them by the, you know, first quarter of 2024.

MA: We've been speaking with former Deputy Assistant Attorney General Harry Litman. Thanks so much for joining us.

LITMAN: Thanks for having me. Transcript provided by NPR, Copyright NPR.

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