The U.S. Supreme Court appears poised to keep former President Donald Trump on the presidential primary ballot in Colorado and other states – including Maine – with justices on the left and right voicing skepticism about the Colorado ruling during oral arguments Thursday.

The outcome of the case challenging Trump’s eligibility to run for president is likely to have implications for the election nationwide and will directly affect the Republican front-runner’s ballot access in Maine’s March 5 primary.

Trump appealed a Colorado Supreme Court ruling that he is ineligible for the ballot under Section 3 of the 14th Amendment of the U.S. Constitution, which says a person may not hold office if they have “engaged in insurrection” against the United States after having previously taken an oath to support the Constitution. The Colorado court ruled Trump engaged in insurrection by inciting the Jan. 6, 2021, storming of the capitol in an attempt to overturn the 2020 election results.

It’s similar to a challenge that voters brought to Maine Secretary of State Shenna Bellows in December arguing that Trump should be disqualified from the state’s primary ballot. Bellows ruled in favor of the challengers, but her decision is on hold pending a Supreme Court ruling in the Colorado case.

“It definitely sounded like all or almost all of the justices were skeptical of Colorado’s position,” said Charles Stewart, a professor of political science at the Massachusetts Institute of Technology and director of the school’s Election Data and Science Lab.

He said that if the court rules against Colorado, the Maine decision will likely fall as a result.

“Trump will be on the primary ballots, I’m pretty sure,” Stewart said.

SKEPTICISM OF STATE DECISION

The justices largely focused their questions Thursday on technicalities of Section 3 and avoided getting into arguments about whether Trump engaged in insurrection or not, an indication they’re unlikely to rule on that question. The justices instead spent significant time questioning the lawyers about whether it makes sense for Colorado – or other states – to unilaterally decide to exclude a presidential candidate under Section 3.

Trump’s attorney began the hearing by arguing that the power to declare a candidate ineligible lies with Congress, not individual states. Justices repeatedly pressed the plaintiffs’ lawyer on that point.

“I think the question you have to confront is why a single state should decide who gets to be president of the United States,” said Justice Elena Kagan, who was appointed by President Barack Obama. “This question of whether a former president is disqualified for insurrection to be president again – it sounds awfully national to me. So whatever means there are to enforce it, it would suggest they’re federal, national means.”

Jason Murray, an attorney for the Colorado plaintiffs, said the Constitution gives states the ability to choose their own presidential electors as they see fit, and the Supreme Court could weigh in where there’s a question around federal qualifications. “If this court affirms the decision (in Colorado), other states would still have to determine what affect that has on their own procedures,” he said.

Justice Ketanji Brown Jackson, appointed by President Biden, also questioned Murray about a lack of uniformity if states are making their own decisions.

“I guess my question is why the Framers would have designed a system that would (or) could result in interim disuniformity in this way where we have elections pending and different states suddenly saying you’re eligible, you’re not, on the basis of this kind of thing?” she said.

“What they were concerned most about was ensuring that insurrectionists and rebels don’t hold office,” Murray said. “And so once one understands the sort of imperative that they had to ensure that oath-breakers wouldn’t take office, it would be a little bit odd to say that states can’t enforce it, that only the federal government can enforce it.”

Murray also argued during Thursday’s proceedings that the public record clearly showed Trump incited an insurrection as part of his efforts to overturn the election results and disenfranchise millions of voters. Trump’s attorney, Jonathan Mitchell, flat out disagreed. “This was a riot. It was not an insurrection,” he said.

Justices did not, however, focus their questions on that dispute. And some made it clear they were reluctant to render a judgment on the question.

At one point, Justice Brett Kavanaugh, appointed by Trump, asked Murray if he would agree there is already a separate tool for weeding out insurrectionists from holding office given that they can be charged with a crime and prosecuted federally.

Murray said that’s true, but that Section 3 provides another route for the civil disqualification of a candidate since the authors of the provision “understood that criminal prosecutions weren’t sufficient because oftentimes insurrectionists go unpunished.”

Some justices also raised questions Thursday about the potential fallout that could arise if Trump is taken off the ballot. Chief Justice John Roberts said that if Colorado’s position is upheld, there could be disqualification proceedings “on the other side.”

“I would expect that, you know, a goodly number of states will say, whoever the democratic candidate is, you’re off the ballot,” Roberts said. “And others for the Republican candidate, you’re off the ballot. It’ll come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.”

Murray said the court could offer clear guidance on what constitutes an insurrection to avoid that kind of situation. “It really requires a concerted group effort to resist through violence, not some ordinary application of state or federal law,” he said.

COURT LIKELY TO KEEP TRUMP ON BALLOT

A spokesperson for Bellows said Thursday that she is not giving interviews on the Supreme Court case because she is in the role of adjudicator and will need to issue a new decision or reissue her original decision after the high court’s ruling.

“Maine’s courts have been clear that we must await the U.S. Supreme Court’s ruling in the Colorado case, and I welcome that ruling,” Bellows said in a prepared statement. “I hope that it will answer the important 14th Amendment questions for all the states.”

It’s unclear when the court will issue a decision. Bellows and others have stressed the need for a quick turnaround given that the primary in Maine and many other states is less than a month away, and absentee voting has already started.

It typically takes months for the court to come out with a ruling, but some experts say this one could come as soon as next week.

Ben Gaines, an attorney for the challengers in the Maine case, said they are “waiting on pins and needles,” since the Colorado decision will have huge implications for Maine. Gaines said the justices asked tough questions Thursday, but he wouldn’t read too much into them.

“Definitely they seemed to be asking questions about state powers to adjudicate a question like this and to do that in the context of presidential ballot access,” Gaines said. “I have no idea how they would get to an opinion on that. It wouldn’t seem to square with our current understanding of presidential ballot access law and could potentially leave us with a huge question hanging over our heads about did Donald Trump engage in insurrection and is he qualified to hold the office of president.”

Legal scholars said the oral arguments led them to believe a majority of the justices are skeptical of the arguments being made by the Colorado plaintiffs and the court is likely to keep Trump on the ballot, though it remains to be seen on what grounds.

OPINION’S WORDING WILL BE KEY

“That’s what I’m most curious about, to see how the opinion is written and what grounds they will use for the decision,” said Dmitry Bam, a professor of law at the University of Maine School of Law.

He pointed to a line of questioning from Jackson about Section 3 not explicitly mentioning the president, as an indication she may be sympathetic to an argument from Trump’s attorney, Jonathan Mitchell, who argued Thursday that Section 3 doesn’t apply to the president.

He also argued that Section 3 applies only to holding office, not running for office. But Bam said a ruling on those grounds could invite future litigation or a challenge to Trump’s eligibility after the election since the same questions would have to be taken up again if Trump is elected.

“Some of the other grounds may resolve it in a more permanent way,” he said.

“The Supreme Court seemed inclined to overturn the Colorado Supreme Court and allow Trump to appear on the ballot,” Derek Muller, a professor of law at the University of Notre Dame Law School, said in an email. “The court seemed particularly worried that any one state could have such outsized influence in a presidential election, without some word from Congress about how to go about determining whether someone engaged in insurrection.”

“If it goes that route, then the challenge to Trump in Maine would fail for the same reasons,” he added.

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