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Updated Dec 29, 2023, 11:01am EST
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Semafor Signals

Legal war over Trump’s candidacy grows

Insights from The New York Times, One First, and Compact Magazine

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REUTERS/Scott Morgan/File Photo
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The News

Maine’s top election official removed former president Donald Trump from the state’s ballot on Thursday, declaring him ineligible to serve as president because of his role in the Jan. 6, 2021, attack on Congress.

The decision comes after Colorado also disqualified Trump’s candidacy on the basis of a constitutional bar on officeholders who supported or “engaged in insurrection or rebellion.” Both states have temporarily put their decisions on hold so Trump can pursue appeals.

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In Michigan a similar case was dismissed, and in California, Trump has been certified as a candidate despite widespread calls to remove him from the ballot.

Lawsuits seeking to remove Trump from the ballot have been filed in over 30 states. While many were dismissed, 14 lawsuits remain active, raising the prospects that Trump may be barred from the ballot in more states. A decision is expected soon in Oregon, where Free Speech for People, a liberal group that also filed lawsuits in Michigan, Minnesota and Oregon, hopes that the State Supreme court will find Trump ineligible for the primary ballot.

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SIGNALS

Semafor Signals: Global insights on today's biggest stories.

How the Supreme Court could handle the politically-charged case

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Sources:  
The New York Times, One First

As state courts come to different conclusions about whether Trump’s efforts to remain in power after the 2020 election fall under the 14th Amendment’s obscure insurrection clause, the U.S. Supreme Court is widely expected to take up the issue. If it does, “it will be impossible for the Court to not be perceived as ‘political,’” legal analyst Stephen Vladeck argued. He wrote that one way for SCOTUS to square the circle of hyperpartisanship surrounding the case would be to conclude that Trump did engage in insurrection, but that the courts cannot ban him from the ballot for this misconduct.

Legal experts are divided on whether Trump can be barred

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Sources:  
The Wall Street Journal, University of Pennsylvania Law Review

Michael B. Mukasey, who served as attorney general under President George W. Bush, has argued that the insurrection clause does not apply to the presidency, which is not mentioned specifically in the provision. Other legal experts have disagreed, saying that it would be an “absurdity” to assume that the Constitution bars insurrectionists from almost every office except that of the president. There has never been a presidential candidate who has been accused in court of being an insurrectionist, meaning there is little precedent for the courts to draw on.

Should the courts even be making these decisions?

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Sources:  
The New York Times, Compact Magazine

While many liberals have welcomed Trump’s disqualification in the hope that it will spell the end of Trump’s 2024 candidacy, both progressives and conservatives have warned that removing an opposition candidate from the ballot through a judicial act would be a “remarkably antidemocratic act,” as a conservative columnist wrote in the New York Times. The ruling in Colorado transformed “what ought to be a national referendum on the future of the country into a national spectacle of how judges will interpret a provision from its past,” Samuel Moyn, a Yale Law School professor wrote.

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