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--:-- John Bickley: Welcome to Morning Wire, I'm Editor-in-Chief John Bickley.
--:-- Georgia Howe: And I'm Georgia Howe. It's Monday, January 1st, and this is a New Year's Day edition of Morning Wire.
--:-- John Bickley: Joining us now is Jessica Levinson, Loyola law professor and host of the Passing Judgment podcast. Welcome, Jessica.
--:-- Jessica Levinson: Thank you for having me.
--:-- John Bickley: So President Trump is facing challenges in several states aimed at keeping him off the presidential primary ballot. But first, we should explain this insurrection clause. It's Section 3 of the 14th Amendment, and it's at the center of these ballot challenges. What was the original intention of the amendment, and how is it being applied here?
--:-- Jessica Levinson: So the original intention of Section 3 of the 14th Amendment was to prevent those who tried to destroy our country from within from serving in government. And this is a post-Civil War amendment to the Constitution. We know the other parts of the 14th Amendment much better. We know about the Equal Protection Clause and the Due Process Clause. But this was specifically geared at those who engaged in an insurrection or gave aid or comfort to those who engaged in an insurrection.
--:-- Georgia Howe: Let's start with Colorado, where the state Supreme Court issued a four to three ruling that Trump is not eligible for the ballot claiming he's an insurrectionist. Now, this is obviously extremely controversial for several reasons, but can you break down Colorado's decision from a straight legal perspective?
--:-- Jessica Levinson: Absolutely. So a divided Supreme Court in Colorado found that there was, in fact, an insurrection that occurred on January 6th, that Trump engaged in it or gave aid or comfort to those who did and that Section 3 of the 14th Amendment does in fact apply to the presidency and therefore that Section 3 applies and he is legally barred from being on the ballot.
--:-- John Bickley: Now, I emphasized for a minute this idea that Section 3 applies to the presidency only because a lower court in Colorado said, I'm looking at the plain language of Section 3, and I see that it says office and it names other offices, but it doesn't specifically name the presidency. And so a lower court judge said, I don't think it applies to the president. What the Colorado Supreme Court said is we agree there was an insurrection. Trump gave aid or comfort to those who engaged in it. But we disagree on your legal analysis that section 3 doesn't apply to the president just because it doesn't use the word president or vice president.
--:-- Georgia Howe: Because what the Colorado Supreme Court did is, in my view, use something called a textualist approach. And they looked at other places where the Constitution mentions an office, and we understand that to include the presidency. And they concluded that, in fact, this clause does apply to the president.
--:-- John Bickley: Now, the Colorado GOP has challenged this ruling, sending it up to the Supreme Court. Do you believe the high court should hear this case? Do you believe they will take up this issue? And how do you think they'll rule?
--:-- Jessica Levinson: I think the Supreme Court desperately doesn't want to be involved here. And I think that they have to be because we can't have this patchwork of rulings where in some states, the former president is eligible for the ballot. And in some states, we come to a different conclusion. This is a situation where I think we're crying out for a national standard. We don't have a specific ruling on this from the Supreme Court because we've never been here before. And that's why we have this open question.
--:-- Georgia Howe: Now, what do I expect the Supreme Court to do? I mean, honestly, I think this is a court that remembers what happened after, obviously, a different court, but after the Supreme Court weighed in on Bush v. Gore almost a quarter century ago, they remember the crisis of legitimacy when it looked like they were the ones to decide a presidential election.
--:-- John Bickley: And I think that would indicate that they don't want it to look like they're the ones who kept one of the leading candidates off the ballot.
--:-- Georgia Howe: That's right.
--:-- Jessica Levinson: I understand. I'm giving you an answer of I think they're making a political calculation as much as a legal calculation. So my gut tells me they will overturn the Colorado Supreme Court. They will say that Trump is eligible for the ballot.
--:-- Georgia Howe: Now in Maine, we have a slightly different scenario. That's where the Secretary of State Shina Bellows unilaterally decided to keep Trump off the ballot. Can you explain how Maine's election laws work in this case, allowing Bellows to take this aggressive action?
--:-- Jessica Levinson: So, again, I think part of what we're seeing here is that every state has different election laws and every state has a slightly different mechanism for who makes the determination as to whether or not somebody is eligible for the ballot. And in Maine, it is the Secretary of State. In Maine, it's kind of the flip side of what happened in Michigan recently. But in Maine, the Secretary of State clearly does have the discretion to determine eligibility.
--:-- John Bickley: And what you have here is a Secretary of State saying, I understand, I am the first Secretary of State in our nation's history to conclude that a candidate for the presidential nomination is not eligible, but I'm the first person to face this set of facts.
--:-- Georgia Howe: And what she said is, I swore an oath to the Constitution, and I'm looking at the Constitution, I'm looking at what it prohibits, and this is the decision that I have to make.
--:-- Jessica Levinson: So she understands that this case will be appealed in the first instance up the main state court system.
--:-- Georgia Howe: In Michigan, interestingly, the Secretary of State said the opposite. She said, I'm looking at our state law, and I don't have any discretion here. So in the states that have rejected these challenges to Trump's eligibility, in my survey of them, all of those states have ruled on procedural grounds as opposed to substantive grounds.
--:-- John Bickley: So all of those states have concluded that they are going to dismiss the challenges to Trump's eligibility, but not based on the Constitution, based on things like lack of standing or lack of discretion to make the determination at all.
--:-- Georgia Howe: Overarching all of this is this idea that you mentioned that we have different standards across states. I think some of it might be surprising to a lot of people just how different the laws are. Can you speak to that why we haven't had a more federal approach to some aspects of these laws?
--:-- Jessica Levinson: We tend to favor in a lot of different areas local control. So I absolutely think that people are surprised when they learn that election laws vary not just state by state, but in a number of cases, county by county. I mean, where you go to a polling place, what your ballot looks like, all of these things really vary on a local level.
--:-- John Bickley: And in part, we believe that local officials or state officials are best suited at making those determinations.
--:-- Georgia Howe: But we certainly do in certain situations face these questions where we don't have a federal standard.
--:-- Jessica Levinson: Now, I will say that there are federal floors, for instance, where we have the Voting Rights Act and we have the Help America Vote Act, where we have certain protections in place that states and localities aren't supposed to transgress. But there is a lot of difference and there's a great deal that is left up to states and, again, localities.
--:-- Georgia Howe: How important is it, in your view, for the Supreme Court to issue a ruling on Section 3 of the 14th Amendment? How vital is this?
--:-- Jessica Levinson: I think it's very important for the court. Again, I don't think the court wants to be here because they don't want to, in my view, enter the political thicket. It's kind of a losing moment for the court in the sense that they know they faced a lot of criticism. They don't want to look like a political body and they know that any way they rule, it will anger a lot of people and people will view a legal ruling through a political lens.
--:-- John Bickley: But I just don't think they can avoid it. I think we have here a new legal question based on an older provision and we have the need for a national standard. We have a need for the only court that can tell us what the federal constitution means to come out with guidance, to say, here is who is barred by Section 3 of the 14th Amendment, and here's who is not.
--:-- Georgia Howe: Well, like you said, a politically loaded and historic case here. Jessica, thank you so much for joining us.
--:-- Jessica Levinson: Thank you for having me.
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--:-- John Bickley: That was Jessica Levinson, and this has been a special edition of Morning Wire.
