Legal Law

Maine Shows the Danger of Zealots in our Legal System – JONATHAN TURLEY

Shenna Bellows / Facebook

Below is my column in the Hill on the Maine decision and how it is illustrative of Justice Louis Brandeis’ warning of the danger of zealots. Shenna Bellows has long embraced extreme political and historical viewpoints, including denouncing the electoral college as a “relic of white supremacy.” Bellows also declared that voter ID laws are “rooted in white supremacy.” Challengers knew that they “had her at hello” in seeking to disqualify former president Donald Trump. The coming week will likely show how the Supreme Court will address the issue.

Here is the column:

“You had me at hello.” That line from the movie “Jerry Maguire” came to mind this week after yet another Democratic secretary of state moved to prevent citizens from voting for former president Donald Trump.

Maine’s Shenna Bellows issued a “decision” that declared Trump an “insurrectionist” and ineligible to be president. She joined an ignoble list of Democratic officials in states such as Colorado who claim to safeguard democracy by denying its exercise to millions of Americans.

Yet the most striking aspect of this poorly crafted decision was not its litany of conclusory findings, but rather Bellow’s implausible suggestion that she struggled over the decision. Bellows was a natural choice for challengers, who have been searching for any officials or courts willing to embrace this dangerous theory under the Fourteenth Amendment that they can unilaterally bar candidates deemed rebellious or insurrectionist.

Challengers knew that they had Bellows at hello. She was one of the first officials to declare the Jan. 6 riot to be an “insurrection” prompted by Trump’s speech.

Bellows previously declared that “the Jan. 6 insurrection was an unlawful attempt to overthrow the results of a free and fair election…The insurrectionists failed, and democracy prevailed.” A year after the riot, Bellows was still denouncing the “violent insurrection.”

Of course, in the 1996 movie, Jerry Maguire reminded Dorothy that ” we live in a cynical world — a cynical, cynical world — and we work in a business of tough competitors.” However,  he added “you complete me.”

In our cynical politics, Bellows and Colorado Secretary of State Jena Griswold, among others, have become wildly popular for seeking to complete the effort to defeat Trump by removing him from the ballot. This cynicism is captured in statements from pundits who warn that Democrats can no longer rely on the election process, given Trump’s soaring popularity.

While not calling for legal disqualification, one law professor declared that Trump sought to “overthrow” democracy and his actions “disqualify him.” Thus, he wrote the “first and best start” is for Democrats to switch parties to engineer a defeat in the primary: “Democrats may have to act radically to deny Donald Trump the 2024 Republican nomination. We cannot rely on Republicans to do it…Trump must be defeated. No matter what it takes.”*

Many Democratic jurists and officials have refused to participate in this cynical effort to win the election through the courts. Maine’s Democratic U.S. Rep. Jared Golden denounced Bellows decision. California Governor Gavin Newsom (D) warned Democrats against embracing this legal theory. His state’s secretary of state Shirley Weber (D) had refused to do what Bellows just did.

Yet Democrats know that they need only to remove Trump from the ballots of a couple of key states to make him constitutionally incapable of becoming president, due to the electoral college. Thus, Trump could be the overwhelming choice of the voters but still be effectively barred from assuming office.

To achieve this end, advocates are willing to adopt the type of ballot-cleansing powers long associated with authoritarian countries such as Iran. That is why this theory of disqualification remains one of the most dangerous to arise in our nation’s history.

The U.S. stands as the most successful and stable democratic system in history. In the blind quest to block Trump “at any cost,” these officials have introduced a destabilizing element to our system that could be replicated in tit-for-tat politics for years to come. It has already begun, with Republicans calling to bar President Joe Biden from ballots.

The ballot-cleansing effort is only the latest example of what Justice Louis Brandeis identified as the true threat to our democracy — not the threat from other countries, but from within. “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding,” he said.

Some of these advocates exhibit precisely that zealotry of someone who seems to understand little beyond the next election, as opposed to the next generation.

The Supreme Court should act not only with finality but with unanimity in rejecting this pernicious disqualification theory. But these same advocates are likely to seek to delay or avoid such review. Even on the Colorado Supreme Court composed entirely of Democratically appointed justices, advocates could only eke out a 4-3 ruling, with a vehement dissent rejecting this theory.

There is a real chance that one or more of the liberal justices will show the same fealty to the constitution in rejecting the theory. That would undermine the claims of figures like Joe Scarborough that arguments against barring Trump are “laughable” and should be “mocked.” While the MSNBC host demanded that his interlocutors “spare me the anti-democratic lectures,” advocates are likely worried about getting precisely such a lecture, and a scathing one, from the Supreme Court.

Accordingly, if the court does not rule on the Colorado decision, Colorado may seek to moot the appeal, since the ballot would remain unchanged with Trump’s name on it.

Some justices may prefer this cup to pass from their lips. The divisive opinion in Bush v. Gore from 2000 still reverberates to this day. For an intense institutionalist like Chief Justice John Roberts, there is a tendency to take exit ramps to avoid rulings if these conflicts can be resolved in the lower courts.

However, the court now faces a call of history. After the Maine decision, the justices must realize that neither they nor the country can avoid this moment. Indeed, the court was designed for this moment: to stand between rage and reason; between cynicism and constitutionalism.

Proponents knew exactly whom to call upon for the right answer. Yet, to their credit, other Democrats, from California to Maine, did not say “hello” but “hell no” to this proposal. It is time for the Supreme Court to do the same.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.

*NB: The column quotes and links to a column calling for Democrats to do whatever it takes to prevent Trump from taking office. While not named in the column, the author was Professor Bruce Ledewitz, who holds the prestigious  Adrian Van Kaam C.S.Sp. Endowed Chair in Scholarly Excellence at Duquesne University’s School of Law.

Professor Ledewitz wrote me to object that the column suggested that he supports the 14th amendment theory to disqualify Trump. He does not and was specifically calling upon fellow Democrats to switch parties to defeat Trump. The reference to his column was specifically meant to highlight his call to stop Trump from returning as president “no matter what it takes” as an example of the zealotry of our times. However, Professor Ledewitz’s opposition to the 14th Amendment theory is commendable and should be noted. He stressed to me that he wants to oppose Trump by whatever means possible so long as it does not violate traditional norms to do so. It is further evidence that many Democrats refuse to adopt this anti-democratic theory to block Trump in the courts. I appreciate his writing to clarify his position on disqualification theory. I tweaked the line above to reflect his views.

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