The notion that Donald Trump can be constitutionally barred from the ballot in the 2024 Presidential election is gaining traction in a number of states, including Maine. Though the concept may be legally valid, however, it’s an idea that could have disastrous political consequences if carried out in an arbitrary manner.

Late last month Maine Secretary of State Shenna Bellows and Attorney General Aaron Frey, both Democrats, issued a statement that their offices were “working together to research and analyze the legal requirements for ballot access, including presidential ballot access, as we do prior to every major election.”

Despite the disclaimer, this is no routine research project. It goes to the heart of an argument being made by some legal scholars that Trump should be prevented from running for President under the Fourteenth Amendment because of his role in the Jan, 6 insurrection.

Section 3 of the U.S. Constitution’s 14th Amendment provides that: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

The 14th Amendment, adopted in 1868, was one of the so-called Reconstruction Amendments, designed to protect the rights of freed slaves after the Civil War by guaranteeing them citizenship, due process and equal protection of law.

The 14th Amendment also sought to insure that former U.S military officers and public officials who had betrayed their oath of office to become Confederate leaders would not merely slide back into their old positions of power after the defeat of the Confederacy.

It was easy to determine who was disqualified from office after the Civil War. If, like Robert E. Lee (a West Point graduate and U.S. Army colonel), you donned the butternut-grey uniform to serve as commander of the Army of Northern Virginia, or like, Jefferson Davis, (also a West Point alum, former Army colonel, Congressman, Senator and Secretary of War), you served as President of the Confederacy, you were never again going to hold a prestigious position in the military or federal or state government.

But who will determine whether Donald Trump has “engaged in insurrection or rebellion” or given “aid or comfort to the enemies thereof”? And by what procedure? Is it going to be left to the secretaries of state and attorney generals of each of the 50 states to determine if he meets the qualifications for office? And, if so, what standard of proof will they apply? Given the vagaries, the determination is bound to become arbitrary.

If Trump is barred from the ballot in this way, especially in swing states, it will merely fortify the “fixed” election myth that he’s been relentlessly propagating since he lost in 2020. That myth has already been etched into the minds of his fervent MAGA supporters, but ballot disqualification could also make believers of non-MAGA Republicans and Independents.

Furthermore, if Joe Biden is the winner of the 2024 election as the result of Trump’s disqualification in key states, his presidency will be viewed by many as illegitimate.

Finally and most ominously, retaliation is virtually assured in a highly polarized political climate. Republicans could seek to disqualify Democratic candidates in future elections on the flimsiest of pretexts, say, for instance, on account of a candidate’s having engaged in an unruly anti-government protest while still a radical young student. The arena of internecine electoral conflict will shift from tightening voting registration qualifications and making it harder to cast a vote to filing preemptive lawsuits to remove candidates from the ballot altogether.

That said, there is a way to legitimately take Trump off the board.

Trump is facing trial in the District Court for the District of Columbia on felony charges of conspiracy to defraud the United States, obstructing an official proceeding, conspiracy to obstruct an official proceeding, and conspiracy against voting rights, all in connection with his abortive attempt to overturn the 2020 election results and prevent Joe Biden from being certified the winner. His trial is set to begin March 4.

An unlawful attempt to overturn a presidential election result is about as close to insurrection as one get can get, short of a military coup. If Trump is convicted on all or any of the pending charges by a jury, he will not constitutionally be disqualified from running by virtue of a felony conviction alone. (Socialist candidate Eugene V. Debbs ran for President from prison in 1920). But his conviction on a charge that falls within the scope of the 14th Amendment could provide solid, objective grounds for state election officials to remove him from the ballot.

Because of his underhanded actions in trying to upend the legitimate results of the last election, Trump doesn’t deserve to be a candidate in the next one.

But, for the sake of upholding public trust in an electoral system governed by the rule of law, he should only be removed from the ballot if his disqualification is the result of due process.

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 17 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer. He may be contacted at [email protected]