The Minnesota Supreme Court rejected a request Wednesday to bar former President Donald Trump from the 2024 ballot under the U.S. Constitution’s insurrection clause that dates to the post-Civil War Reconstruction era.
The ruling came quickly; five justices heard oral arguments on the case last Thursday and sounded skeptical during the 70-minute session.
Chief Justice Natalie Hudson started out saying, “‘Should we’ is the question that concerns me most.” She raised the specter of electoral chaos if 50 state courts decided differently on Trump’s eligibility. “So, should we do it?” she asked.
The decision came on a petition filed in early September by a bipartisan group seeking to bar Trump from the Minnesota ballot based on Section 3 of the 14th Amendment. The so-called insurrection clause prohibits former officers from holding office again if they’ve “engaged in insurrection or rebellion” or “given aid or comfort” to those who did.
Leading the effort were the nonprofit Free Speech for People, former Minnesota Secretary of State Joan Growe and former Supreme Court Justice Paul H. Anderson. Their attorney, Ronald Fein, argued that Trump is disqualified from holding future office because of his actions on and leading up to Jan. 6, 2021.
Before the session last week, Anderson said in an email that the decision won’t be the final word. “The issue will be appealed to and decided by the U.S. Supreme Court,” he wrote.
The highly unusual request for disqualification was the focus of a daylong seminar at the University of Minnesota Law School last week featuring constitutional law and political experts from across the country.
Many seemed skeptical that the court would disqualify Trump. The experts also expected the petition — or a similar one pending in Colorado — to make it to the U.S. Supreme Court.
In her remarks in court last week, Hudson noted that previous cases on ballot disqualification provided mixed guidance. “Doesn’t that suggest we use caution and some judicial restraint and maintain the status quo?” she asked.
The petitioners’ attorney, Ronald Fein said there is “ample authority” to disqualify Trump and that the constitutional directive to the court was to do so.
But the state GOP argued that blocking Trump violates its First Amendment right of association, because doing so would restrict who the GOP can choose as their presidential candidate.
The court’s speedy action reflects the fast-approaching 2024 presidential primary.
Arguing for Simon last week, Assistant Attorney General Nathan Hartshorn took no position on Trump’s eligibility, but asked the court to rule no later than Jan. 5 so county election officials would have time to prepare for the ballots. Absentee voting for the primary begins Jan. 19.
Joining Hudson on the bench in a full courtroom last week were Justices G. Barry Anderson, Anne McKeig, Gordon Moore and Paul Thissen.
Justices Margaret Chutich and Karl Procaccini recused themselves for unstated reasons but presumably because Charles Nauen, a lawyer for the petitioners, is tied to the justices’ election campaigns.
Nicholas Nelson, the attorney for Trump and his campaign, said the events of Jan. 6, 2021, didn’t qualify as an insurrection or rebellion. He argued that some serious crime and violence took place but nothing on the scale or scope of an insurrection.
Hudson said, “Insurrection kind of might be in the eye of the beholder and it depends who’s doing the beholding.”
McKeig asked whether the questions of definition and Trump’s participation weighed in favor of the petitioners’ request for an evidentiary hearing to determine the answers.
But Fein, for the petitioners, said insurrection is as “open to judicial enforcement as any other terms in the Constitution.”
Section 3 rose to prominence in part because of an upcoming article to be published in the University of Pennsylvania Law Review that was co-written by two Federalist Society members, including Michael Stokes Paulsen at the University of St. Thomas School of Law.
The 126-page article, available online, said the Civil War-era provision in the Constitution bars Trump from holding office again.