US Politics

As 2023 comes to a close, the Voting Rights Act is facing a series of dire threats that could significantly weaken the landmark civil rights law.A suite of three different pending cases could gut the ability of private plaintiffs to challenge the Voting Rights Act, make it harder to challenge discriminatory election systems, and limit the Voting Rights Act’s protections in areas where a single racial minority doesn’t constitute a majority.“It’s a shock to the system,” said Sophia Lin Lakin, the director of the Voting Rights Project at the American Civil Liberties Union.The new wave of attacks come after the supreme court unexpectedly issued a decision in June that upheld a critical provision of the law.In a 5-4 decision, the justices beat back an effort by Alabama that would have made it much harder to use the Voting Rights Act to challenge voting districts that weaken the influence of Black voters. Writing for the majority, Chief Justice John Roberts sent a strong signal the court wasn’t interested in reconsidering its jurisprudence around Section 2 of the Voting Rights Act, the most powerful tool voting rights litigators have to challenge districts. It was a full-throated defense of the Voting Rights Act, the 1965 law the court has aggressively weakened in recent years.“The heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our [section] 2 jurisprudence anew,” Roberts wrote in the majority opinion in the case, Allen v Milligan, that was joined by his fellow conservative Brett Kavanaugh and the three liberal justices. “We find Alabama’s new approach to [section] 2 compelling neither in theory nor in practice. We accordingly decline to recast our [section] 2 case law as Alabama requests.”The rulings was a sigh of relief for voting rights lawyers. Over the last decade, the court has ruled against voting rights at nearly every turn. It gutted the pre-clearance requirement at the heart of the Voting Rights Act, greenlit aggressively removing people from voter rolls, made it harder to challenge discriminatory voting laws, and made it nearly impossible to challenge a voting rule as long as an election is near.There’s nothing new about an onslaught of threats facing the Voting Rights Act, which has faced efforts to weaken it virtually since the moment it was enacted. But those attacks appear to be finding a more receptive audience in a supreme court and federal judiciary reshaped by Donald Trump that are willing to entertain fringe legal ideas.“The Voting Rights Act, in 2023, in some ways is on more stable footing than it was last year. And in other ways feels like it’s poised to undergo a whole new set of threats,” said Danielle Lang, a voting rights attorney at the Campaign Legal Center.ArkansasThe most significant threat is a case from Arkansas that could block the ability of private litigants – voters, civil rights groups, political parties – from bringing cases to enforce the Voting Rights Act. No “private right of action” exists under the law, the US court of appeals for the eighth circuit said in a novel ruling earlier this month.It was a decision invited by the supreme court justices Neil Gorsuch and Clarence Thomas. In 2021, they issued a separate opinion musing that the court had never definitively said whether or not private parties could bring section 2 cases – a surefire invitation to litigants to try and get the question before the court.If private parties can’t sue under the Voting Rights Act, it would make it virtually impossible the enforce the law. Non-governmental groups, which have more resources than the justice department and can move much more quickly, have brought the vast majority of cases in the six decades since the Voting Rights Act was enacted. If enforcement were only up to the government, priorities could change from administration to administration (the justice department filed very few voting rights cases under Donald Trump).“It would completely eviscerate the last remaining power behind the Voting Rights Act in any way real way,” said Lakin, the ACLU attorney, who represents the plaintiffs in the Arkansas case.The issue has created even more uncertainty for voting rights litigators in an environment in which they already have a reduced toolkit to combat voting discrimination after the Shelby county decision.“It is certainly frustrating,” Lang said. “When you look at all the work that’s yet to be done in the voting rights space. And instead of getting that work done, lawyers get sidetracked having to fight old battles over them.”GeorgiaThe Arkansas case isn’t the only serious threat to the Voting Rights Act. In Georgia, an appellate court recently ruled the Voting Rights Act couldn’t be used to challenge the way the state had chosen to elect the five members of its public service commission (PSC), which oversees utilities. Under state law, each of the five members are elected by the entire state, a method that “unlawfully dilutes the votes of Black citizens under Section 2 of the Voting Rights Act”, the US district judge Steven Grimberg ruled last year. A district system would better ensure that Black voters could elect the candidate of their choosing to the PSC.But the US court of appeals for the 11th circuit overturned that decision in November. The Voting Rights Act couldn’t be used to change the way the PSC was elected, a three-judge panel said, because the Georgia legislature had chosen to elect its commissioners that way. “Georgia chose this electoral format to protect critical policy interests and there is no evidence, or allegation, that race was a motivating factor in this decision,” the judge Elizabeth Branch, who was nominated by Trump for the bench, wrote for a unanimous three-judge panel.The decision could have far-reaching consequences. It could be read to prohibit Voting Rights Act challenges in Georgia to the state assembly school boards or county commissions – bodies of government where civil rights litigators have long turned to the law to combat voting discrimination.TexasAnother threat to the Voting Rights Act is fast emerging from Texas. Earlier this year, a district judge struck down the city of Galveston’s four county commission districts. When Republicans redrew the districts in 2021, they got rid of the sole district in which Black and Latino voters were able to elect the candidate of their choice. Striking down the districts in the case, the US district judge Jeffrey Brown called the effort “stark and jarring”.A three-judge panel for the US court of appeals for the fifth circuit upheld that ruling. It noted that neither Black people nor Hispanic people constituted a majority on their own in the district at issue, but that precedent allowed them to be considered together for purposes of a Voting Rights Act claim.But then the panel did something unusual. It went on to say it believed that precedent was wrong. And in a highly unusual step, it urged the full court to review the case and overrule it. The full fifth circuit has since agreed to hear the case, and paused redrawing the Galveston district in December, a signal it is skeptical that the Voting Rights Act protects so-called “coalition districts”.Whether or not the Voting Rights Act applies in areas where no minority group makes up a majority, but a coalition of minorities votes cohesively as one, is a question that has not been definitively answered by the supreme court. A ruling saying that those areas are not protected under the Voting Rights Act would make it harder to challenge districts in diverse multi-racial areas.The issue is already playing out in litigation outside of Texas. In Georgia, a federal district judge ordered Republicans to redraw their congressional map to include an additional majority-Black congressional district in west Atlanta. Republicans did that, but they dismantled another district in which a coalition of minority voters formed a majority and had been electing the candidate of their choice. It’s a strategy that is betting courts will embrace the idea that coalition districts aren’t protected.If the supreme court applies its precedent on the Voting Rights Act consistently, it should uphold coalition districts, experts say.“Prohibiting these coalition claims amount to a kind of racial essentialism that the conservatives on the court have been railing against for a long time,” said Justin Levitt, a professor at Loyola Law School in Los Angeles. “It’s actually … weird to assert that Blacks and Latinos experience is just different. And different enough that the Voting Rights Act doesn’t care.”The emergence of all three attacks has created even more uncertainty in voting rights litigation. But while there’s plenty of reasons to be disturbed by the recent rulings, voting rights experts aren’t warning of a five-alarm fire just yet.They say there are reasons to be somewhat optimistic. First, there is a different section of federal law independent of the Voting Rights Act that gives private parties the ability to bring federal lawsuits to protect civil rights.Second, outside of the eighth circuit, no other court has said that a private right of action doesn’t exist. The ultra-conservative fifth circuit even affirmed that one existed earlier this year, and the panel rejected a request to reconsider in December.Beyond Gorsuch and Thomas, it’s also not clear that a majority on the supreme court will embrace the idea that no private right of action exists.While the eighth circuit ruled no private right of action exists, no other court has issued similar rulings. “It is important for us to kind of wait. This could be a big challenge. If so, we’re gonna meet it head on. It could be a blip,” Lang said.“The crazier claims and the crazier holdings and the crazier findings don’t speak for all of the judicial system. And they certainly haven’t found purchase with the supreme court,” Levitt said.And while the spate of recent cases represents a new level of threats against the Voting Rights Act, lawyers note that the law has long faced efforts to dismantle it and it has survived largely intact.“The challenges to the Voting Rights Act and efforts to dismantle it are going to exist as long as the voting rights act exist. Based on what the supreme court said this year, I expect the Voting Rights Act to exist for a while,” Lang said. “The fact that people are still coming at it with everything they’ve got I think is because it’s maintaining its power.” More

The reason I write a column for the Guardian is the same reason I read it daily: I trust it.Not just the facts it conveys but also its judgment about what to convey – the stories it believes worthy of reporting, and doing it in ways that illuminate what’s really happening.That judgment is especially important as the US faces an election in 2024 in which one of the two likely candidates was engaged in an attempted coup and has given every indication of wanting to substitute neo-fascism for democracy.Again and again, the mainstream media have drawn a false equivalence between Donald Trump and Joe Biden – asserting that Biden’s political handicap is his age while Trump’s corresponding handicap is his criminal indictments.But Trump is almost as old as Biden, and Trump’s public remarks and posts are becoming ever more unhinged – suggesting that advancing age may be a bigger problem for Trump than for Biden.The Guardian has been picking up on this, but why isn’t the mainstream media reporting on Trump’s increasing senescence?Similarly, every time the mainstream media reveal another move by the Republican Party toward authoritarianism, they point out some superfluous fault in the Democratic party in order to provide “balance”.So readers are left to assume all politics is rotten.A recent Washington Post article was headlined: “In a swing Wisconsin county, everyone is tired of politics.”“How do Americans feel about politics?” the New York Times asked recently, answering:“Disgust isn’t a strong enough word.”But where is it reported that the mainstream media have contributed to making people tired and disgusted with politics?And where is it acknowledged that this helps Trump and his Republican allies?They want voters to be so turned off of politics that they’re unaware of Biden’s accomplishments, such as an economy that continues to generate a large number of new jobs, with real (adjusted for inflation) wages finally trending upward, inflation dropping and no recession in sight.Plus, billions of dollars pumped out to fix and improve the nation’s roads, ports, pipelines and internet. Hundreds of billions allocated to combat climate change. Medicare, now lowering the cost of prescription drugs. Billions in student debt canceled. Monopolies attacked. Workers’ rights to organize, defended.One person interviewed by the Post admitted, “I can’t really speak to anything [Biden] has done because I’ve tuned it out, like a lot of people have. We’re so tired of the us-against-them politics.”As if the “us-against-them politics” is the fault of Democrats as much as it is Republicans, when in fact the GOP is the party of dysfunctional politics.Much of the GOP no longer accepts the rule of law, the norms of liberal democracy, the legitimacy of the opposing party or the premise that governing requires negotiation and compromise.Why isn’t this being reported?Trump and his allies want Americans to feel so disgusted with politics they believe the nation has become ungovernable. The worse things seem, the stronger Trump’s case for an authoritarian like him to take over: “I’d get it done in one day.” “I am your voice.” “Leave it all to me.”By focusing on Trump’s rantings and ignoring Biden’s steady hand, the mainstream media are playing directly into Trump’s neo-fascist hands.I’m sticking with democracy, and the Guardian.
Robert Reich, a former US secretary of labor, is a professor of public policy at the University of California, Berkeley, and the author of Saving Capitalism: For the Many, Not the Few and The Common Good. His newest book, The System: Who Rigged It, How We Fix It, is out now. He is a Guardian US columnist. His newsletter is at robertreich.substack.com More

Special counsel Jack Smith urged a federal appeals court Saturday to reject former president Donald Trump’s claims that he is immune from prosecution, saying the suggestion that he cannot be held to account for crimes committed in office “threatens the democratic and constitutional foundation” of the country.The filing from Smith’s team was submitted before arguments next month on the legally untested question of whether a former president can be prosecuted for acts made while in the White House.Though the matter is being considered by the US court of appeals for the District of Columbia circuit, it’s likely to come again before the supreme court, which earlier this month rejected prosecutors’ request for a speedy ruling in their favor, holding that Trump can be forced to stand trial on charges that he plotted to overturn the results of the 2020 election.The outcome of the dispute is critical for both sides especially since the case has been effectively paused while Trump advances his immunity claims in the appeals court.Prosecutors are hoping a swift judgment rejecting those arguments will restart the case and keep it on track for trial, currently scheduled for 4 March in federal court in Washington. But Trump’s lawyers stand to benefit from a protracted appeals process that could significantly delay the case and potentially push it beyond the November election.Trump’s lawyers maintain that the appeals court should order the dismissal of the case, arguing that as a former president Trump is exempt from prosecution for acts that fell within his official duties as president.Smith’s team has said no such immunity exists in the Constitution or in case law and that, in any event, the actions that Trump took in his failed effort to cling to power aren’t part of a president’s official responsibilities.The four-count indictment charges Trump with conspiring to disrupt the certification in Congress of electoral votes on 6 January 2021, when rioters motivated by his falsehoods about the election results stormed the US Capitol in a violent clash with police. It alleges that he participated in a scheme to enlist slates of fake electors in battleground states who would falsely attest that Trump had won those states and encouraged then vice-president Mike Pence to thwart the counting of votes.Those actions, prosecutors wrote, fall well outside a president’s official duties and were intended solely to help him win re-election.“A President who unlawfully seeks to retain power through criminal means unchecked by potential criminal prosecution could jeopardize both the Presidency itself and the very foundations of our democratic system of government officials to use fraudulent means to thwart the transfer of power and remain in office,” Smith’s team wrote.In their brief, prosecutors also said that though the presidency plays a “vital role in our constitutional system”, so, too, does the principle of accountability in the event of wrongdoing.“Rather than vindicating our constitutional framework, the defendant’s sweeping immunity claim threatens to license Presidents to commit crimes to remain in office,” they wrote. “The Founders did not intend and would never have countenanced such a result.”skip past newsletter promotionafter newsletter promotionWhile Trump’s lawyers have argued that the indictment threatens “the very bedrock of our Republic”, prosecutors say the defense has it backwards.“It is the defendant’s claim that he cannot be held to answer for the charges that he engaged in an unprecedented effort to retain power through criminal means, despite having lost the election, that threatens the democratic and constitutional foundation of our Republic,” they said.A three-judge panel is set to hear arguments on 9 January. Two of the judges, J Michelle Childs and Florence Pan, were appointed by president Joe Biden. The third, Karen LeCraft Henderson, was assigned to the bench by the former president George HW Bush.The US district judge Tanya Chutkan earlier rejected the immunity arguments, asserting that the office of the presidency does not confer a “‘get-out-of-jail-free card”. Trump’s lawyers then appealed that decision, prompting Smith to seek to bypass the court and request an expedited decision from the supreme court.The justices last week denied that request without explanation, leaving the matter with the appeals court.Trump faces three other criminal prosecutions. He is charged in Florida with illegally retaining classified documents at his Mar-a-Lago estate; faces a state prosecution in Georgia that accuses him of trying to subvert that state’s 2020 presidential election; and faces a New York case that accuses him of falsifying business records in connection with a hush-money payment to an adult film star. More

Virginia senator Tim Kaine has added his voice to a rising chorus within the Democratic party questioning the Biden administration’s legislatively unconstrained transfer of US munitions to Israel.In a news release on Saturday, the Democratic senator – a member of the Senate armed services committee – said weapons transfers must come under congressional oversight.“Just as Congress has a crucial role to play in all matters of war and peace, Congress should have full visibility over the weapons we transfer to any other nation. Unnecessarily bypassing Congress means keeping the American people in the dark,” Kaine wrote.“We need a public explanation of the rationale behind this decision – the second such decision this month,” he added.On Friday, the US Defense Security Cooperation Agency said the US secretary of state, Antony Blinken, had approved the sale of 155mm projectiles and related equipment valued at $147.5m, an increase from an earlier approved order for tens of thousands of rounds of the heavy artillery munitions.It said that Blinken had “determined and provided detailed justification to Congress that an emergency exists that requires the immediate sale to the Government of Israel” and that the sale was “in the national security interests of the United States” and thereby exempt from congressional review under arms-export control laws.“The United States is committed to the security of Israel, and it is vital to US national interests to assist Israel to develop and maintain a strong and ready self defense capability,” the statement added.Kaine said in his statement that he “strongly condemned” Hamas’s 7 October attacks on Israeli civilians, which killed about 1,200 people, and had been vocal about the need to address the humanitarian crisis in Gaza.At least 21,672 people have been killed in Gaza and 56,165 wounded since the war began, according to the most recent numbers from the Gaza health ministry.skip past newsletter promotionafter newsletter promotionKaine’s statement added to administration concerns that its policy of military transfers to Israel, including a $14.3bn package announced in November that Biden called “an unprecedented support package for Israel’s defense”, is out of step with US domestic and international public opinion.On Friday, South Africa called on the International Court of Justice (ICJ) to find that Israel’s war in Gaza is a violation of the Genocide Convention of 1948. The filing accused Israel of engaging “in genocidal acts against the Palestinian people in Gaza”.Separately, the UN agency for Palestinian refugees (UNRWA) said that soldiers with the IDF fired on a UN aid convoy returning from a delivery in northern Gaza, an incident the UN humanitarian chief Martin Griffiths condemned as “unlawful”. More

Donald Trump is reportedly expected to file legal challenges early next week to rulings in Maine and Colorado knocking him off primary ballots amid mounting pressure on US supreme court justices to rule on whether his actions on 6 January 2021 constitutionally exclude him from seeking a second term in the White House.The New York Times said that Trump’s legal moves could come as early as Tuesday.The impending collision of legal, constitutional and political issues comes after the two states separately ruled that the former US president was ineligible under a constitutional amendment designed to keep Confederates from serving in high office after the civil war.In Maine, the secretary of state, a political appointee, issued the ruling and a challenge will be filed in state court. Meanwhile, in Colorado the decision was made by the state’s highest court and will probably have a swifter passage to the conservative-leaning US supreme court – should it wish to hear the case.The conservative justices on the supreme court are sympathetic to “originalism”, which holds that the meaning of the constitution and its amendments should be interpreted by what its authors wrote. On the other side are justices more in tune with a contemporary application of the spirit of the original wording.The precise wording of the passage in question – section 3 of the 14th amendment – says anyone who has taken the oath of office, as Trump did at his 2017 inauguration, and “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”, is ineligible.But at the heart of the anticipated challenges will be whether individual states have the authority to interpret constitutional matters outside their own constitutions. “Every state is different,” Shenna Bellows, Maine’s secretary of state, said on Friday. “I swore an oath to uphold the constitution. I fulfilled my duty.”The rulings have received pushback from elected officials. California’s governor, Gavin Newsom, said Trump should be beaten at the polls and back-and-forth ballot rulings in states are a “political distraction”.After Maine’s decision on Thursday, Republican senator Susan Collins said voters in her state should decide who wins the election – “not a secretary of state chosen by the legislature”. Former New Jersey governor and trailing nomination rival Chris Christie told CNN the rulings make Trump “a martyr”.“He’s very good at playing ‘poor me, poor me’. He’s always complaining,” Christie added.Florida’s governor, Ron DeSantis, told Fox News that the Maine decision violates Trump’s right to due process – a jury decision on the now-delayed insurrection case. Former South Carolina governor Nikki Haley said: “It should be up to voters to decide who gets elected.”One Trump adviser, speaking on condition of anonymity, told the Washington Post that all state appeals court decisions on multiple efforts to kick Trump off state primary ballots – 16 have failed, 14 are pending – have ruled in the former president’s favor.“We don’t love the Colorado ruling, of course, but think it will resolve itself,” the adviser said.According to the New York Times on Saturday, Trump has privately told people that he believes the US supreme court will rule against the decisions. But the court has also been wary of wading into the turbulent constitutional waters of Trump’s multiple legal issues.skip past newsletter promotionafter newsletter promotionLast week, the court denied special counsel Jack Smith’s request to expedite a ruling on whether Donald Trump can claim presidential immunity over his alleged crimes following the 2020 election.But the argument that voters, and not courts or elected officials, should decide elections has been under stress since the 2000 election when Republican George W Bush was elected after a stinging legal battle with then vice-president Al Gore over Florida ballot recounts that was ultimately decided by the court.According to the Times, Trump is concerned that the conservative justices, who make up a “supermajority”, will be worried about the perception of being “political” and rule against him.Conversely, the justices might not want to be steamrollered into making decisions on a primary ballot timetable set by individual states that are themselves open to accusations of political coloring.For now, both the Maine and Colorado decisions are on hold. The Colorado Republican party has asked the US supreme court to look at the state’s decision, and Trump is anticipated to repeat that request and has said he will appeal the Maine decision.Maine’s Republican party chair, Joel Stetkis, told the Washington Post that “Shenna Bellows has kicked a hornet’s nest and woken up a sleeping giant in the state of Maine. There’s a lot of people very, very upset that one person wants to take away their choice.”Trump spokesperson Steven Cheung told the outlet: “We are witnessing, in real time, the attempted theft of an election and the disenfranchisement of the American voter.”Democrats in blue states, he said, “are recklessly and un-Constitutionally suspending the civil rights of the American voters by attempting to summarily remove President Trump’s name from ballots. These partisan election interference efforts are a hostile assault on American democracy.” More

The US Department of Justice has threatened to sue the state of Texas if it implements a law that would allow state police to arrest any person deemed suspicious of crossing the border illegally.The law, called Senate Bill 4, is scheduled to go into effect on 5 March. One of the strictest immigration laws ever passed in American history, SB4 seeks to “prohibit ‘sanctuary city’ policies, that prohibit local law enforcement from inquiring about a person’s immigration status and complying with detainer requests”.The law would include “improper border entry” as a new criminal offense, placing undocumented Texas residents and migrants within the grips of the state’s criminal justice system.Immigration and border enforcement is a function of the federal government, the justice department argues: since the US supreme court ruled so in the landmark United States v Arizona case in 2012, immigration policy has long been under the purview of the US federal government – not individual states.In a letter addressed to the Republican Texas governor, Greg Abbott, the Biden administration has given the Lone Star state a deadline of 3 January to reverse course.The letter says, in part: “SB 4 is preempted and violates the United States constitution. Accordingly, the United States intends to file suit to enjoin the enforcement of SB 4 unless Texas agrees to refrain from enforcing the law. The United States is committed to both securing the border and ensuring the processing of noncitizens consistent with the Immigration and Nationality Act (INA). SB 4 is contrary to those goals.”On X, Abbott wrote: “The Biden Admin. not only refuses to enforce current U.S. immigration laws, they now want to stop Texas from enforcing laws against illegal immigration. I’ve never seen such hostility to the rule of law in America.”He added: “Biden is destroying America. Texas is trying to save it.”The move is one of several attempts by Texas at enforcing border security, all a part of Operation Lone Star, a joint operation between the Texas department of public safety and the Texas military department with the mission of countering illegal immigration.skip past newsletter promotionafter newsletter promotionEarlier this year, in July, Abbott and his administration were condemned as inhumane by immigrant and civil rights groups for deploying razor wire and a large floating buoy in the Rio Grande to deter illegal migration – another issue on which the US Department of Justice pursued legal action against Texas.In May, shortly after the Biden administration ended the pandemic-era policy Title 42, which had given US officials authority to turn away people who had come to the US-Mexico border claiming asylum in order to prevent the spread of Covid-19, Abbott deployed a security unit called the Texas tactical border force to the US-Mexico border. The force is equipped with aircrafts, boats, night vision devices and riot gear.In recent years, Texas has also joined Republican-led Florida in bussing undocumented immigrants from their states to “sanctuary” cities such as Chicago, New York and Boston. More

The lonely political vigil of long-shot Democratic presidential candidates Marianne Williamson and Minnesota congressman Dean Phillips will be transformed on to the debate stage early next month in New Hampshire – without Joe Biden, who is neither on the state ballot nor agreeable to any debate interaction with competitors.The debate between self-help author Williamson and Phillips is set to be held at the New England College on 8 January, and moderated by Josh McElveen, former political director of radio station WMUR, two weeks before the state holds its primary.Biden elected to skip the New Hampshire primary after a spat between state election officials and the Democratic National Committee, after the DNC opted to move South Carolina to the top of the primary calendar. New Hampshire, which has held its primary first for more than a century, pushed ahead anyway.Like the Republican candidates who have been debating without their frontrunning candidate, Donald Trump, the mission is something of a death watch, lest either the Democrat or the Republican frontrunner fail to make it to next year’s presidential vote, and as a symbolic marker of the widespread dissatisfaction with both candidates.Williamson is polling at 12% and Philips at 4%, according to a Quinnipiac University poll published last month. Another puts Phillips at 17% and Williamson at 6%.Williamson said in a statement to the Hill that her expectations of the debate were that “it will be substantive and my definition of success is that I blow it out of the park”.Last week, Phillips quoted a poll that found 60% of New Hampshire voters didn’t want Biden to stand. “His approvals are cratering to historic lows,” he posted on X. “The DNC is ignoring reality, deluding Democrats, suppressing competition, and handing 2024 to the GOP.”Both participants will have 90 seconds for opening and closing statements and one minute for answers, the Hill reported. If a candidate invokes the other, they will be given 30 seconds to respond. More

A decision by Maine’s secretary of state to prevent former president Donald Trump from appearing on the state’s presidential election ballot will now probably end up before the US supreme court. Maine’s move follows a similar decision in Colorado this month.There is mounting pressure on the conservative-leaning judicial body to swiftly rule on Maine and Colorado’s application of section 3 of the 14th amendment prohibiting anyone who “engaged in insurrection” from holding office. But neither decision will be the last ballot eruption in an already convulsive election which is likely to see a rematch of Trump versus Joe Biden.Lawsuits seeking to remove Trump from the ballot have been filed in about 30 states but more than half have already been dismissed, including in California where this week the secretary of state, Shirley Weber, decided to keep Trump on the certified list of candidates for the state’s 5 March primary, and in Michigan.There are now active lawsuits in 14 states, including Alaska, Arizona, Nevada, New Jersey, New Mexico, New York, Oregon, South Carolina, Texas, Vermont, Virginia, West Virginia, Wisconsin and Wyoming, seeking to remove Trump ahead of their primaries citing the same constitutional clause.The 14th amendment, ratified three years after the conclusion of the civil war in 1865, covered a range of issues, including guaranteeing rights to former slaves and a provision to disbar anyone who had taken the oath of office to uphold the constitution who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”.Like other civil war-era laws that have been utilized to try to contain political extremism – including a failed attempt to prosecute the leaders of a 2017 neo-Nazi Unite the Right torchlight rally under a federal civil statute known as the KKK Act – the section 3 clause was only rediscovered after January 6 riot at the US Capitol.Technically, section 3 doesn’t require a criminal conviction to take effect.Nor is it clear if section 3 applies to the presidency. An early draft mentioned the office, but the final draft did not. If it does apply to the presidency, Trump’s lawyers will argue that it is a political question that should be decided by voters and any effort by judges to get involved is a denial of the candidate’s right to fair legal procedure because it was made without the benefit of a public trial.They may also argue that January 6 was not an insurrection but more akin to a riot that Trump was not himself involved in and that he wasusing his rights of free speech when he cajoled the crowd: “We fight like hell. And if you don’t fight like hell, you’re not going to have a country any more.”In Maine, the secretary of state, Democrat Shenna Bellows, broke ranks with other similarly positioned officials in other states. In her decision, she cited the Colorado supreme court ruling that the January 6 attack “was violent enough, potent enough, and long enough to constitute an insurrection”.In her ruling, Bellows said that Trump had “used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power” and that he “was aware of the likelihood for violence and at least initially supported its use given he both encouraged it with incendiary rhetoric and took no timely action to stop it”.The Maine decision was immediately appealed by the state’s Republican party and must first travel through the state’s court system before it can reach the US supreme court.skip past newsletter promotionafter newsletter promotionBut both Colorado and Maine are small players in the electoral college system that decides presidential elections. In Maine, Democrats won in in 2016 and 2020 but Trump won one of four electoral votes under an unusual system that allows the state to split its four votes proportionally. In Colorado, Trump failed to win its nine votes in both elections.Across the political spectrum, private lawsuits aimed at getting Trump off the ballot are being treated as funky, freelance efforts by elected politicians.The California governor, Gavin Newsom, said Trump should be beaten in the polls and warned that while the former president was a “threat to our liberties” the lawsuits and back-and-forth ballot rulings were a “political distraction”.After Maine’s decision on Thursday, the Republican senator Susan Collins said voters in her state should decide who wins the election – “not a secretary of state chosen by the legislature”, adding that the decision would “deny thousands of Mainers the opportunity to vote for the candidate of their choice, and it should be overturned”.The Associated Press contributed reporting More