ST. PAUL— A case heard last Thursday before the state Supreme Court is expected to decide whether former President Donald Trump is qualified to appear on primary ballots in Minnesota this March. And it appears that decision could well hinge on whether justices ultimately agree that Trump engaged in or incited an insurrection.
The case is one of several currently before high courts in states across the country that seek to block Trump from appearing on presidential ballots under the 14th Amendment’s Section 3, which prohibits candidates from holding office who have previously sworn an oath of office and subsequently engaged in or gave comfort to rebellion or insurrection.
Former Minnesota Secretary of State Joan Growe, former Supreme Court Justice Paul H. Anderson, and the national nonprofit Free Speech for People are suing current Secretary of State Steve Simon. They argue that Simon has the authority to disqualify Trump from the ballot for his involvement in the Jan. 6, 2021 uprising during which thousands of Trump supporters stormed and damaged the U.S. Capitol building and injured more than 100 police officers in an effort to block the ratification of Joe Biden’s 2020 election victory over Trump. Simon, for his part, has maintained that any disqualification under the 14th Amendment should come from the courts.
Justices seemed to recognize the fraught legal and political challenges posed by Growe’s lawsuit, and they peppered attorneys on all sides with questions in hopes of finding a path forward. Hudson noted that prior cases on ballot disqualification have offered no clear direction. “Doesn’t that suggest we use caution and some judicial restraint and maintain the status quo?” she asked.
Chief Justice Hudson noted the political ramifications of a possible decision to remove Trump from the ballot. “Even if you’re right and we have the authority to remove someone from the ballot, should we?” she asked Ronald Fein, the attorney representing the petitioners.
Hudson picked up on a theme pressed by Trump attorney Nicholas Nelson, who argued that leaving that question to states could leave a patchwork of decisions with some states allowing a candidate on the ballot while others might opt for disqualification.
“This is the way our system is set up,” responded Fein. “For better or worse, different states could adjudicate this differently,” he added, noting that the administration of elections is left to the states to decide under the U.S. Constitution. Furthermore, he said, a decision by any state to disqualify Trump would likely be taken up on appeal at the U.S. Supreme Court, which would ultimately render a determination that would apply nationwide.
For now, the question before Minnesota’s high court is whether to conduct an evidentiary hearing to better assess what constitutes an insurrection for the purposes of the 14th Amendment. At times, lawyers for the Republican Party of Minnesota and Donald Trump seemed almost to argue for such a hearing even as they urged the high court to dismiss the petition. Attorney Reid Lebeau, representing the party, argued that determining whether a potential candidate engaged in insurrection would require greater fact-finding than had been done to date. He said determining questions of qualification, such as meeting age or citizenship requirements, are easier to determine than a question of disqualification as spelled out in the 14th Amendment.
“I would agree with you,” said Chief Justice Natalie Hudson. “And doesn’t that go to the petitioners point that we need an evidentiary hearing?”
A similar claim against Trump’s qualification for the ballot in the state of Colorado has already reached the evidentiary stage and has heard a wide range of testimony in recent days.
The arguments at times delved far back into American history, with discussion of the origins of the 14th Amendment’s Section 3 and how it has been applied since its adoption in the wake of the Civil War. In fact, justices noted that the case law on disqualification is remarkably thin, even as the section’s provision allowing for individual amnesty issued by a two-thirds vote of both houses of Congress, was regularly used by former members of the Confederacy.
Among the issues the Minnesota justices will need to determine is whether or not the disability provision in Section 3 is “self-enforcing,” which in this context means it requires no determination by Congress. Petitioners argued that the law is self-enforcing, which means the high court could make a determination on Trump’s qualification without congressional action. Trump’s attorney argued that it would be up to Congress to determine whether Trump engaged in insurrection and could be barred from future office.
Justice Gordon Moore noted that a bipartisan House of Representatives found Trump guilty of inciting insurrection as part of his second impeachment. “Does that have any bearing on this case?” asked Moore.
“I think the Senate’s acquittal on the charge would also inform that decision,” responded Trump attorney Nelson. In fact, 57 of the 100 members of the Senate, including seven Republicans, voted to convict Trump, a clear majority although short of the two-thirds requirement in the Constitution.
While the arguments focused primarily on the language of the 14th Amendment, a state law that authorizes the Supreme Court to hear such a case in a question involving eligibility for a federal office, did come in for some questioning. Fein argued that Minnesota Stat. 204B.44 specifically authorizes individuals to file petitions seeking redress in the case of an error by the Secretary of State, such as placing the name of an ineligible candidate on an election ballot.
The high court offered no immediate timeline for deciding whether to dismiss the case, or ordering an evidentiary hearing.