6 October 2023
Some Democrats, independents and even never-Trump Republicans here in Minnesota and elsewhere may be overly enthused with the prospect of using the “insurrection” clause of the 14th Amendment to keep former President Donald Trump off the ballot.
They envision achieving that objective by invoking the portion of that post-Civil War measure that bars anyone from holding elective office who has “engaged” in an insurrection or aiding others in doing so.
They could be flirting with fire.
Following a civil case initiated in Colorado early in September and serving as a forerunner for similar thrusts taken in other Trump-hostile jurisdictions, a legal proceeding was initiated here in the Twin Cities shortly after Labor Day seeking to prevent the 45th president from becoming the 47th. It asks to bar Steve Simon, Minnesota’s secretary of state, from placing the former president on the ballot for the upcoming Republican primary in March and the election next November, if he is endorsed by the Republican Party.
The claimants in the Minnesota case are operating under the umbrella of a national group known as Free Speech for People. They include high-profile heavyweights no less than Paul Anderson, a highly respected former state Supreme Court justice and a pre-MAGA moderate Republican; Joan Growe, a former secretary of state and long-time progressive DFLer, and a few other political middleweights.
Their case has been expedited and scheduled for hearing before the state Supreme Court on Nov. 2, a year and three days before the 2024 presidential election. The jurists in St. Paul are likely to issue a ruling upon the case soon thereafter, probably before the Jan. 5, 2024, cut-off date for primary ballot eligibility. Unless leapfrogged by another state, the Minnesota decision may be the first one in the nation addressing the “insurrection” issue.
Its ruling would only apply to the ballot here in Minnesota, but it would create a nonbinding precedent to be used as guidance for upcoming judicial decisions in other states.
Playing into Trump’s narrative
If successful, the larger effort at candidate suppression would eliminate Trump’s aspirations to return to the White House a second time the way another native New Yorker did: Grover Cleveland, the 22nd and 24th president, who split his two terms in the late 19th century around an election defeat.
But the Minnesota case and similar ones sprouting up across portions of the nation are rife with hazards. One is that the litigation plays right into what Sen. Marco Rubio of Florida described in the 2016 presidential primary campaign as the unusually “small hands” of the ex-president.
It allows Trump and his supporters to point to efforts to keep him off ballots as another example of “weaponization” of the legal system and an attack on his followers’ ability to exercise their rights to vote for him. That, in turn, helps his narrative that he is the victim of forces out to punish him and suppress his supporters, an assertion that has substantial appeal to Trump acolytes.
Uncharted territory
The keep-Trump-off-the-ballot movement is flying blind in uncharted territory. The prospect of the “insurrection” provision sidelining the former president from returning to the White House, let alone make it onto the ballot to get there, is attractive to some academics and pundits.
While simmering for some time, the “insurrection” clause concept turned into a realistic possibility spurred by the odd couple authorship of a piece by high-profile legal scholars like retired federal appellate judge Michael Lustig, a conservative icon, in concert with Harvard Law School’s Lawrence Tribe, a celebrated liberal lion, as well as an academic paper by Prof. Michael Paulson of St. Thomas University Law School in the Twin Cities, among other legal luminaries. Even the leader of the arch right-wing Federalist Society, the greenhouse for conservative judges, initially endorsed the idea, before the organization recanted a couple of weeks ago when it saw that the concept it supported was actually proceeding.
But the effort to disenfranchise Trump-inclined voters may not be as appealing to elected officials and judges who must decide whether to allow him to be on the ballots in the various states where challenges have been lodged.
The most formidable hurdle is that the issue will end up, sooner or later, before the U.S. Supreme Court, a Trump-packed tribunal that is unlikely to ban him from the ballot.
How it plays in Minnesota
The chances of success might be greater here in Minnesota. After Secretary of State Simon, who certifies electoral candidates, declined to bar the ex-president from ballot, the matter landed in the lap of the state Supreme Court, which is in transition due to the recent retirement of Chief Justice Lori Gildea and replacement by Justice Natalie Hudson, who now heads a tribunal that consists of six DFL appointees and a single one from the GOP.
But even with Minnesota’s liberal-imbued high court, it might be an uphill fight for the challengers.
In 2020, an erstwhile obscure Republican candidate sued to be placed on the primary ballot after the state party denied him access to run against the sole GOP-approved candidate, none other than the-ex president.
The case, de la Fuentes v. Simon, reached the state Supreme Court on the eve of the primary, where it floundered. The court ruled it would not intervene on grounds that the parties decide whom to place before the voters.
Gildea, who retired at the end of last month after 13 years at the helm, was troubled by that challenge, pointing out at the hearing that there is “something disturbing” about the proposition that courts “can effectively control whom voters get to vote for.”
The stop-Trump advocates run the risk of the same rationale being invoked against them in a different context, in the new Trump “insurrection” ineligibility case to be heard next month.
But whatever lower tribunals, state or federal — here or elsewhere — adjudicate the issue, it will probably be up to the U.S. Supreme Court to come up with a solution. It’s unlikely to be favorable ruling for the anti-Trump challengers in the absence of a prior judicial declaration by a lower court that the ex-president engaged in the prohibited conduct.
Pragmatic politics
In addition to the distinct potential for defeat in court, the anti-Trump ballot brigade may lose in the court of public opinion.
A pragmatic political problem hovers above the legal machinations. The “insurrection” litigation gives the GOP frontrunner the opportunity to point to the multi-state effort to eviscerate his candidacy as another illustration of how he is the victim of a “weaponized” attempt to keep him out of the White House, which constitutes an attack on his wide band of supporters, too.
Like his quartet of indictments, a legal challenge on “insurrection“ grounds could redound to the benefit of the ex-president’s popularity, at least within his party, not to mention the millions of dollars he will gather from small donor contributors to wage his ballot battles.
So, the insurrection-disqualification advocates ought to be careful because they are sparking a blaze that might burn them badly. If they don’t pay attention to this warning, there’s another admonition adage they ought to heed: “If you try to take out the king, don’t miss.”
Marshall H. Tanick is a constitutional law attorney in the Twin Cities.