The Minnesota GOP Gives the Gift of Obama
Dashed-Off Daily Disqualification Update (Oct 27): The MNGOP's Arguments
NOTE: Links to the documents mentioned in this post are available in yesterday’s Orientation post. My other writing in this case is in the Roundup post. You may recall that I yesterday recommended Prof. Derek Muller’s amicus brief as a pre-read.
Look, I get it.
Lawyers don’t get paid to make the best arguments. They get paid to win cases. Any lawyer worth his salt will make every halfway-plausible argument he can on behalf of his client—plus several implausible arguments gussied up to look suave. If a lawyer can do this without upsetting the judge or exceeding the maximum word count (which would upset the judge), he can sap his opposition’s resources (and will to live) and perhaps lead his opposition into an unforced error. Plus, hey! Maybe the dumb argument you found barely plausible enough to include is the one argument that will totally win over the judge! People are weird and surprising! Lawyers are well-paid to exploit that!
Meanwhile, I get paid to keep you updated on the Minnesota Disqualification Suit and write Barbenheimer reviews, and I’m all out of Barbenheimer.1
Still, if I had realized going in that I was going to have to slog through the MNGOP’s briefs in Growe v. Simon, I might learned to cook a roux instead.
The Minnesota Disqualification Suit remains in “Phase I”: before the court decides whether President Trump “engaged in insurrection” that would disqualify him from the presidency, it must first decide whether it’s allowed to decide about the insurrection. This raises several issues, several of them extremely interesting, and a couple of them fairly close calls.
Alas, Donald Trump took all the interesting issues for his brief, so his co-respondents at the Republican Party of Minnesota had to fill their 8,000 words with something, and they… sure did that!
Lots of people have written about the questions Trump raised: is the Presidency an “officer” under the Fourteenth Amendment? Does the Fourteenth Amendment require implementing legislation? What exactly happened in Griffin’s Case, a non-binding-but-respected 1869 lower-court decision about Section Three? These are interesting questions!
However, while the questions MNGOP2 raised are far less interesting, almost nobody else has actually written about them. I will therefore cover those today.
Yesterday, I wrote a warning about being fair-minded toward the other side, since there’s clearly some cognitive biases at play in this case, and everyone mostly believes what they believe in good faith. Over the coming week, I will have many opportunities to demonstrate that assumption of good faith. Not so much today, though, because I think the MNGOP’s arguments are, for the most part, quite bad, and quite obviously so.3
Timing
When I first typed this section, it read like this:
To their credit, the MNGOP does not try to argue that the timing of this case is wrong. They could have argued that the case is unripe (lawyer for “filed too early”) or that it is barred by laches (lawyer for “filed too late”). They didn’t. There was no plausible argument for laches, and everybody knows that it’s in everybody’s best interests—including Donald Trump’s—to get this resolved ASAP instead of pleading unripeness.
In their brief, Joan Growe and the other petitioners made a clear argument that this case is timed correctly. In his brief, Secretary of State Steve Simon ignored every substantive legal issue and instead devoted his entire word count to agreeing with Growe & Co. that the case is timed correctly. To their credit, the MNGOP acquiesced.
I really wanted to give the MNGOP a point here.
Then the buggers had to go and file their Oines supplemental, their final document in the case to date, and their last argument in that document was… drumroll… “Laches bars this petition.”
MNGOP’s position is that, because the Capitol Insurrection happened in 2021, and Donald Trump announced his candidacy for President nearly a year ago, Free Speech For People should have filed this petition in November 2022, or at least in April 2023, when they began circulating letters to various state Secretaries of State demanding that Trump be struck from the ballot.
There are so many things wrong with this argument that it’s hard to know where to begin.
First of all, Free Speech For People isn’t the petitioner, or even a petitioner, in this case. Joan Growe and her associates are the petitioners in this case. They hired Free Speech For People as their lawyer. I presume they hired FSFP because FSFP had clearly demonstrated its support and passion for their position—but that doesn’t make FSFP a party in the case.
As mere table stakes to begin the discussion about whether the case is barred by laches, MNGOP would need to show—or at least suggest—that Joan Growe, plus each and every one of her co-petitioners, were both aware of their rights and delayed unreasonably in exercising them. (I, for one, am a big ol’ nerd, but even I wasn’t aware of my rights until August 30.) MNGOP doesn’t even try to demonstrate this. They confuse FSFP for the clients FSFP represents.
That’s enough to dispose of the point, but MNGOP annoyed me with this. I was almost done with this stupid article, most of the rest is already written as I type this, then they pulled this crap and now I have to revise the whole section. So I’m not letting them off the hook that easily.
The reason I assumed nobody would even try pleading laches in this case is because laches is normally invoked against petitioners who show up at the courthouse door a few days or weeks before election day. Many, many candidate eligibility challenges are filed after early voting starts, almost always after ballots are printed. These petitioners must meet a high burden to show that they couldn’t have showed up earlier. Meanwhile, some of the borderline cases, like Martin v. Simon (2016) or De La Fuente v. Simon (2020) have been filed weeks before early voting, but only days before the ballot orders need to be sent to the printers. Mr. Martin, who filed four days before the ballot printing deadline, was barred by laches. Mr. De La Fuente, who filed about three weeks before the ballot printing deadline, was lightly scolded, but permitted to proceed.
Growe & Co. filed five months and twenty-two days before election day, and three months and twenty-four days before the ballot deadline… for the primary! Filing an election challenge this far ahead of a primary is either practically unheard of or literally unheard of.4
Even if Growe & Co. had known about their rights prior to this date, they didn’t have the right to file their petition until either ballot errors “have occurred” or “are about to occur.” The ballot error had not occurred in April 2023. It still has not occurred now. The error will occur if and only if MNGOP Chairman David Hann erroneously transmits Donald Trump’s name to Secretary of State Steve Simon and Simon places the name on the primary ballot. This is expected to happen in the first week of January, 2024. In April 2023, it was still unclear that Secretary of State Simon would comply with Hann’s error. Things only started to move in August.
On August 14, the Baude-Paulsen paper was posted, and I started reading it. Over the next several days, reading Baude-Paulsen and more detailed accounts of the January 6 attack than I had previously imbibed, I finally became aware of Trump’s disqualification. On August 18, I wrote to Secretary Simon to inquire whether he planned to take Trump off the ballot. On August 23, Free Speech For People did the same thing.
Secretary Simon did not write me back until August 29. That’s the day I became aware of Minn. Stat. §204B.44 and my rights under it.5 I assume that’s the same day that he wrote to Free Speech for People, and presumably the same day they became aware of their rights. However, Simon did not post a public statement until September 7—the earliest date on which ordinary members of the public (like Growe & Co.) could possibly be expected to know that Simon was “about to commit” an election error. They filed in court just five days later. Laches? Come the heck on! At least be serious enough to make a misjudged ripeness argument!
Incidentally, as I have stated repeatedly, I never intended to file a petition against Sec. Simon. I believed the proper target of the petition was MNGOP Chairmain David Hann. For this reason, I wrote to Hann on September 3, asking whether he intended to include Trump on his list of Republican candidates or not. I am still awaiting his response. As far as I recall from the filings in Growe v. Simon, his party has never directly stated whether it intends to include Trump or not (they simply insist on their right to include Trump). In short, I have sought clarification about whether an error is “about to occur,” and have yet to receive that clarification. Per De La Fuente v. Simon, the MNGOP’s failure to reply to me froze the tolling of laches against me, at least until the current case started and froze the tolling even harder. I am laches-free!
If, by some miracle, Growe’s case is tossed on laches grounds, I will phone Free Speech For People the next day, hire legal director Ron Fein as my lawyer, and be back in court by the weekend.
I wish this sloppy reasoning didn’t characterize the rest of MNGOP’s filings, because it would be a lot more fun to read and write about. Alas. At least I’m getting it out of the way tonight, so I can do the good stuff over the coming week.
Yes, that was a thousand words about laches, but only because I got mad. The rest is calmer (because I wrote it two days ago) and therefore shorter.
A Political Question
The first argument [EDIT: second argument, bloody laches] the MNGOP raises is the “political question doctrine.”6
There are certain issues that courts are fundamentally unable to resolve, because the Constitution consigns those issues unequivocally to the “political branches.” For example, if a president were impeached and convicted on a charge of, I dunno, let’s say perjury, that president could not appeal to the courts to argue that he’s innocent, or even to argue that he was deprived of due process protections. The Constitution gives the Senate—and only the Senate—the “sole Power to try all impeachments.”
In some cases, a matter is a “political question” even without a direct statement in the Constitution. You cannot take the president to court to demand that he recognize the government of Taiwan as the legal government of all China, because the U.S. courts have consistently held since 1808 that only the elected branches have the legal capacity to identify other governments. The Constitution never comes out and says this, but the Constitution does clearly consign foreign affairs to the other branches, and it does not hand the judiciary a framework of international law they might use to adjudicate the question. Without that framework, how could the courts decide recognition questions, and how could the basis of their decisions be traced back to the ultimate authority of the People? Therefore, the courts have always said that they don’t have any power to act in that area.
By the same token, courts may not issue injunctions against Congress ordering it to pass a law, nor declaratory judgements against the president ordering him to veto something or pardon someone. Courts can decline to enforce laws they deem unconstitutional, and can inform the other branches of the boundaries of their powers, but cannot force the other branches to exercise their own discretionary powers in specific ways.
There are, then, issues that are truly beyond the reach of the courts. However, the mere fact that a legal question also has important political implications does not make it a “political question.” As Justice Brennan wrote in the main political-question precedent of the past century, Baker v. Carr7 (1962):
The doctrine of which we treat is one of “political questions,” not one of “political cases.” The courts cannot reject as “no law suit” a bona fide controversy as to whether some action denominated “political” exceeds constitutional authority.
The Disqualification Clause is in Section Three of the Fourteenth Amendment. Section Five of the Fourteenth Amendment says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” According to the MNGOP, Section Five consigns all of the Fourteenth Amendment to Congress, making Congress the sole actor in this arena. That renders disqualification a political question, which courts cannot address—at least, not without Congress’s permission.
This is reinforced, MNGOP says, by other provisions of the Constitution that order Congress (not the courts) “to preside over the selection and removal of Presidents” (p3). These provisions include Congress’s power to regulate federal elections, Congress’s role in counting electoral votes and holding contingent elections if necessary, and Congress’s power to remove the President from office using impeachment or the Twenty-Fifth Amendment’s disability protections.
Furthermore, MNGOP cites cases from the early 2010s where Republican voters sued to disqualify President Obama from the ballot, on the grounds that Obama was not a “natural-born citizen.” In several cases, courts held that these claims were invalid because they were “political questions.” Grinols v. Electoral College, a case out of California, is one of MNGOP’s favorites. After citing the parts of the Constitution dealing with selection and removal of presidents, Grinols concludes:
These various articles and amendments of the Constitution make it clear that the Constitution assigns to Congress, and not the Courts, the responsibility of determining whether a person is qualified to serve as President. As such, the question presented by Plaintiffs in this case—whether President Obama may legitimately run for office and serve as President—is a political question that the Court may not answer.
If it was a political question for a Democrat President, surely it’s a political question for a Republican President, too. What’s good for the goose is good for the gander, right?
However, the MNGOP has pulled a couple fast ones here. In arguing that Congress has sole authority over the selection and removal of presidents, it has omitted the central actors in selecting a president: the states themselves.
Article II, Section One says, “Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors…” States have plenary power to select and bind electors as they please. Fun fact: state legislatures are under no obligation to hold general elections for president at all. Legislatures could, by themselves, simply pick the presidential candidate they prefer, appoint electors who support that candidate, and then bind them to vote that way.8 If a state decides to go that route, Congress is absolutely powerless to do anything about it. In fact, in the early Republic, states routinely did just this!9 Presidential selection and vetting is entrusted to states far more than it is entrusted to Congress.
That’s bad for MNGOP’s argument here. As it happens, the Minnesota state legislature has directed that our state’s electors be selected in a statewide election contest governed, in part, by §204B.44. That law requires that candidates be eligible to appear on the ballot. The Minnesota Supreme Court is authorized by the state legislature to enforce this provision. The U.S. Constitution therefore consigns presidential qualification questions (in part) to the Minnesota legislature (through Article II), and the legislature, in turn, consigns those same questions (in part) to the Minnesota Supreme Court. Even if disqualification was a political question, the political branches have properly asked the judicial branch to play a role! Although Congress may certainly play some part in determining presidential qualifications, its role is not, and never has been, exclusive.
That’s reinforced by the language of Section Five: “Congress shall have power to enforce, by appropriate legislation, [the Fourteenth Amendment].” The text here does not say “sole power,” like it does in the Impeachment Clauses.10 Instead, Section Five gives Congress power to act where needed, but does not deny power to anyone else with a sporting interest in ensuring the Fourteenth Amendment’s grand promises are obeyed.
Indeed, if the Fourteenth Amendment wanted to make Congress the sole imposer of disqualifications, it likely would have done so within Section Three itself. Instead, Congress did the opposite: Section Three makes Congress the sole remover of disqualifications, but says nothing about imposing them—implying that they are imposed from elsewhere. Since the Constitution does not consign disqualification solely to Congress the way it consigns impeachment, and since there are legitimate judicial standards for disqualification whose authority can be traced back to the People, it is not a political question—and never could have been.11
But what about those cases against Obama where the courts ruled the political question doctrine did apply?
Well, you shouldn’t place a lot of weight on decisions by distant state and district courts in cases argued (almost universally) by amateurs who did a terrible job. Many of the people suing to stop Obama were self-represented cranks who had no idea how to argue constitutional technicalities like the “political question doctrine,” and, as a result, they got smoked by opposing counsel much worse than they needed to be. However, even if you do place weight on these precedents, MNGOP has not been entirely forthcoming about what they actually say.
Take Grinols v. Electoral College, for example, MNGOP’s favorite failed anti-Obama case. In that case, James Grinols (who was represented by this kook) didn’t sue to have Obama removed from the ballot under state authority, like Joan Growe is doing to Trump in this case. Instead, after Obama won the 2012 election and after the electoral college had already voted, Grinols sued Congress as a whole.12 Specifically, Grinols sought an injunction forbidding Congress from certifying the results of the 2012 presidential election. He insisted that not only does the President have to be a “natural-born citizen” (true), but that the President, to be validly certified by Congress, has to first prove he is a natural-born citizen by presenting a valid birth certificate and social security number. The legal authority he cited for this claim was, I kid you not, “common sense.” (If the Constitution requires presidents to present a social security card, I wonder how Grinols thinks presidents were elected for the 150 years prior to the creation of Social Security!) Grinols had no standing under state or federal law to bring the case, and made no apparent attempt to show that state or federal law conferred on any court in the land the powers Grinols asserted.
Given that context, yes! The court correctly held that Mr. Grinols was trying to infringe on several different political questions—among many other grave defects with his bonkers lawsuit. Courts cannot enjoin Congress. Courts cannot order Congress to pass certain laws, nor order it to disregard certain duly-certified electoral votes, nor invent eligibility requirements not written in the text (nor order Congress to invent them on its behalf). All these things that Mr. Grinols demanded are beyond the courts.
Yet that tells us very little about the present case, where Ms. Growe and her lawyers are bringing a petition under a duly-enacted state law asking a state court to instruct a state official as to his duties regarding a state election established under the state’s plenary Article II authority to choose the state’s own electors.
Besides, Grinols and its brethren aren’t even the be-all-end-all. Of the few courts that considered the eligibility of Barack Obama or John McCain but didn’t throw the cases out on their ears for standing or laches or other technicalities, several concluded that presidential qualification was not a political question. They accepted the challenges as valid. Then, they consistently ruled that Obama and McCain were natural-born citizens eligible to run for president, because, well, duh. (Prof. Derek Muller’s excellent amicus brief discuses this, with some citations, in Section I-B.) MNGOP does not mention this adverse authority.
Alas, this is not the only time the MNGOP will play hide-the-ball games in its brief. Again, their lawyers are paid to do exactly this, and I’d expect no less from my lawyers, but it makes for frustrating reading.
Standing
Later in their brief, the MNGOP argues that Minnesotans can’t bring 204B.44 petitions to question the eligibility of presidential candidates, because 204B.44 doesn’t cover presidential candidates. That no doubt comes as a surprise to the many people who read my August post that drew attention to 204B.44, all of whom (to my knowledge) came away with the impression that, yes, you totally can use this law to challenge the eligibility of presidential candidates.
It certainly came as a surprise to Minnesota Secretary of State Steve Simon,13 who advised me (and the rest of the state) that 204B.44 was the proper channel for a presidential qualifications challenge. I’m sure it also surprised the longest-serving Secretary of State in Minnesota history, a woman who not only helped write 204B.44, but led its implementation for the first 18 years of its existence… a woman by the name of Joan Growe, yes, the petitioner in this very case! She certainly seems to think it 204B.44 applies to presidential candidates!
Still, perhaps these authorities are mistaken, or driven by bias against Trump. Determinedly, the MNGOP argues:
Minnesota statutes section 204B.44(a)(1) permits a challenge to “the placement of a candidate on the official ballot who is not eligible to hold the office for which the candidate has filed…” [emphasis MNGOP’s]
They then argue for a couple pages that presidential candidates in Minnesota do not file for office. Instead, presidential candidates are “determined” (in the primary) and “certified” (in the general). Therefore, MNGOP argues, presidential candidates don’t “file,” therefore aren’t covered by 204B.44, therefore can’t be challenged.
It’s true that presidential candidates in Minnesota never personally file a piece of paper saying, “I am a candidate for president.” (MNGOP spends a page walking through 204B.06, 204B.10, and 204B.13 establishing this, but, mercy, I agree already!) Given that fact, their argument looks plausible at a glance, doesn’t it? If 204B.44 applies only to candidates who file, and presidential candidates don’t file, there’s no case!
However, looks can be deceiving, especially when someone is trying to deceive you. The MNGOP quoted 204B.44 super selectively. Here’s the passage with more context:
any individual may file a petition… for the correction of… an error or omission in the placement or printing of any candidate or any question on any official ballot, including the placement of a candidate on the official ballot who is not eligible to hold the office for which the candidate has filed.
[emphasis mine; full text here in case you don’t trust my ellipses]
The MNGOP very cleverly and very obnoxiously omitted the word “including” (and every word before it) in order to make it look like 204B.44 tolerates eligibility challenges exclusively against candidates who have “filed.” Once you see the word, “includes,” though, that looks very different, doesn’t it? As Justice Scalia wrote in his great textualist tome, Reading Law, “include” is not a word of exclusion:
In normal English usage, if a group “consists of ” or “comprises” 300 lawyers, it contains precisely that number. If it “includes” 300 lawyers, there may well be thousands of other members from all walks of life as well. That is, the word include does not ordinarily introduce an exhaustive list, while comprise… ordinarily does. That is the rule both in good English usage and in textualist decision-making.
As the Supreme Court explained in 1941’s Federal Land Bank of St. Paul v. Bismarck Lumber Co. (ooo! Minnesota connection!):
…the term “including” is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.
The case where an ineligible candidate files for office is one “illustrative example” of the “general principle” that putting an ineligible candidate on the ballot in general is an error redressable under 204B.44—even for candidates who do not “file” for office.
MNGOP surely know that placing an ineligible candidate on the ballot has been considered an error for decades, even before the “illustrative example” was added to the statute (in 2015). Readers of this blog already know that, under Moe v. Alsop (1970), ineligibility has for decades disqualified candidates from appearing even on the primary ballot. There is no hint in the text of 204B.44 nor in surrounding proceedings to suggest that the legislature added an example in 2015 in order to narrow the scope of existing law. It seems, rather, that they were inclined to put existing law on a firmer textual footing.14
In short, MNGOP is playing word games and hoping the reader doesn’t know the underlying law well enough to see through it. After all, if they weren’t trying to put one over on you, they would have quoted the full passage, not torn one clause out of context. That’s the tell. Running this strategy against a crowd at Republican State Central might work; running it against the Minnesota Supreme Court strikes me as… risky.
However, this strategy accomplishes one crucial goal, regardless: it forces Joan Growe to respond. Her response brief had to spend almost 10 pages refuting just the dumb arguments described above. In a strictly limited 39-page brief, that meant 10 pages Growe couldn’t spend digging deeper into questions like the meaning of “officer of the United States.”
We aren’t even done, though.
Disability Eligibility
This one’s downright creative. The MNGOP next argues that, because 204B.44 only covers cases where a candidate is ineligible for office, it does not include disqualifications for insurrection, which (says MNGOP) do not render a candidate ineligible.
What?
Article II, Section I, which defines the President’s age and residency qualifications, uses the word “eligible.” Section 3 does not use the word “eligible.” Instead, it uses the word, “disability.” The MNGOP contends:
This textual difference has meaning — it is presumed [under textualism] that the use of different words is intended to convey different meanings.
Reader, I confess that this is the moment in the brief when I threw up my hands. The argument is seriously that legal “disability” to hold office is somehow different from legal “ineligibility” to hold that same office. The argument runs for three pages, but is not improved by expansion. The key argumentative move comes when they claim:
A person can be eligible to do something on one hand, but prohibited… on the other hand.
No, a person very well can not! If you’re prohibited from doing something, you are ineligible for it. MNGOP’s statement, which cites to no authority, is just obviously wrong.
That’s obvious to you, the reader, because the fact you’ve made it this far in the article means you’re literate. Alas, courts do not decide things based on common sense; they depend instead on authority, so here’s one—Black’s Law Dictionary, Abridged 10th Edition:15
eligible, adj.: Fit and proper to be selected or to receive a benefit; legally qualified for an office, privilege, or status.
disable, vb.: 3. To legally disqualify (someone); to render (someone) legally incapable.
This confirms what is already plain: you’re eligible if you’re legally qualified. Disability makes you legally disqualified, therefore makes you ineligible.
Moreover, as Growe pointed out in her reply, the Minnesota Constitution’s qualification clause for the governor doesn’t use the word “eligible,” either. However, everyone agrees that a gubernatorial candidate must meet those qualifications in order to be eligible… because, well, nobody thought of this particular pretzel-twisting textual abuse until two weeks ago.
Nevertheless, mission accomplished: in a strictly limited 39-page reply, Growe had to expend 1.5 pages refuting this fiddle-faddle. Good lawyering, bad everything else.
Freedom of Association
Next, the MNGOP argues that, even if Donald Trump is disqualified, striking him from the ballot would violate the Republican Party’s First Amendment rights—specifically, the right of free association. The party has a right to decide its own nominees under its own internal rules, and it may define those rules for itself.
It is true enough that political parties, like other private organizations, have a right to self-government that the State cannot infringe upon without good and proportionate cause. MNGOP cites many cases to that effect. For example, in 2000’s California Democratic Party v. Jones, California attempted to impose a “blanket primary,” in which all voters would be allowed to vote in the primary election for all parties. This meant that, for minority parties, the majority of people deciding their candidates would not be members of the party (and may be actively hostile to the party). The U.S. Supreme Court ruled that this deprived the parties of the fundamental “freedom to identify the people who constitute the [party], and limit the [party] to those people only.”
On the other hand, the power of parties to govern themselves is not unlimited. The Supreme Court has also held that a state may require political parties to use the primary format to select candidates (American Party of Texas v. White, 1974), and that states may refuse ballot placement to candidates—even major party candidates—if they fail to demonstrate “a significant modicum of support” through signature-gathering (Jenness v. Fortson, 1971).16 In both cases, we see that a state can regulate the internal rules of a political party when it has a strong and justifiable interest in doing so, when the party relies on the state to help facilitate its internal proceedings, and when it doesn’t fundamentally undermine the party’s capacity to govern itself.
All three conditions apply here. Minnesota has a strong interest in ensuring that its voters’ votes actually contribute toward the election of an eligible presidential candidate, the Republican Party chooses to rely heavily on Minnesota’s administrative assistance in holding a statewide presidential primary, and disqualification of one specific candidate, however important, does not eviscerate the party’s whole self-government.
The MNGOP bleats that, because it selects delegates who will be “bound” to Trump at the national convention, the disqualification is tantamount to disqualifying anyone who personally supports Trump from being selected as a national delegate. But this is nonsense. National delegates can be personally loyal to anyone; they just have to cast their first vote at the national convention for a specific candidate. After the first vote, they are free to support whoever they want. We know this is fine, because—as long time De Civitate readers may recall—the 2016 election saw hundreds of national delegates who were bound to one candidate, but who were secretly or openly loyal to a different candidate. The Republican Party is free to select Trump loyalists for the national convention, even if Trump is disqualified. Minnesota state law (207A.12(d)) merely forbids those delegates from voting for Trump at the national convention—at least, not on the very first ballot.
The MNGOP also argues, correctly, that Minnesota state law delegates presidential nomination selection to political parties, who enjoy broad discretion (Brief, pp6-8). However, it then argues, incorrectly, that this delegation liberates the political parties from any and all legal restrictions and/or judicial enforcement of said restrictions. To state this claim plainly suffices to refute it.
Uniformity
Finally, MNGOP argues that states and state courts cannot interfere in the national election for president. They several times quote a California state court decision, Keyes v. Bowen, which stated:
The presidential nominating process is not subject to each of the 50 states' election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results.
Well, no, actually, that’s just wrong. The presidential nominating process is precisely subject to each of the 50 independent state legislatures deciding how to elect the president. That’s what Article II of the Constitution does: it gives the state legislatures plenary power over the presidential ballot. Some of the 50 state legislatures delegate some of that plenary power, under validly ordained state law, to state election officials, including Secretaries of State and Party Chairmen and Supreme Courts, and ask those bodies to independently determine whether presidential nominees are qualified, either before the primary or before the general election or both.
Insofar as they have done so, the presidential nominating process is indeed subject to each of the 50 states’ election officials independently deciding whether a presidential nominee is qualified. If that causes chaos, too bad. That’s the law.
In Minnesota, authority to determine eligibility has been delegated to the Minnesota Supreme Court, originally by judicial interpretation of R.L.1905 §202 (see State ex Rel. McGrath v. Erickson, 1938), later developed by legislative reinforcement in MN Stat. §203.38 (see Moe v. Alsop, 1970), and finally by explicit legislative statement in the modern MN Stat. §204B.44.
This will not lead to chaos, because the Supreme Court will intervene, but, even if it did lead to chaos, “I don’t think this is a good idea” is not a valid legal reason to reject a valid claim made under a valid law. Of course, no sane court wishes to interfere with the People's democratic decision-making process, and the Minnesota Supreme Court is presumptively sane. However, as I have said before, this is a republic, not a democracy. It is the Constitution that has intervened, not this court. It is the State of Minnesota, acting under the Constitution, that has empowered this court to render its judgment. It remains to this court only to enforce this unhappy provision against Respondents.
Obama’s Third Term
I have worked through these arguments piece by piece, and hopefully I have shown you why each is not only wrong, but unworthy of serious consideration. (This will not be the case as we get into the question of “officers of the United States,” coming soon. That’s a tough one!) However, this piecemeal approach risks losing the forest for the trees. Let’s step back for a moment.
Suppose former President Barack Obama announces tomorrow that he is running for President. You may say, “Hey, wait a minute, Barack Obama can’t do that! He’s already served two terms!” Of course, you are right. Obama did serve two terms. The Twenty-Second Amendment says that he cannot be elected to a third. However, Obama has learned something interesting from the Trump-Biden Era: you can just lie about stuff, and it confuses the hell out of the legal system.
So Obama says that, no, he has actually not been elected twice before. Maybe he puts on a tiny fake mustache and claims he is a totally different person named Barak Obama (no “c”). Maybe he doesn’t bother. The lies of the past decade have been pretty brazen, and Obama himself was no slouch. Either way, Obama is out there and he claims he is eligible to be elected President. Who’s going to stop him?
Democratic voters still adore Obama, and the Republican Party of Minnesota is teaching Democratic voters today that it’s okay to vote for candidates with constitutional infirmities.17 They’ll vote for him, given half a chance. The electorate as a whole? They aren’t quite as in love with Obama, but they love him a damn sight better than they love Trump or Biden. If those are the options, they’ll elect Barack Obama to a third term.
Presumably, the MNGOP, which (rightly) loathes Obama, will try to stop this flagrant violation of the Constitution. But how?
The Secretary of State has no independent power to investigate Obama’s candidacy. I agree with MNGOP and Secretary Simon on that. So if “Barak” Obama claims he is an eligible candidate, the Secretary of State has to accept this.
In every other circumstance, a Minnesotan could then object, using 204B.44 to trigger a Supreme Court hearing, where we may present evidence demonstrating that “Barak” Obama is actually Barack Obama, that he served two terms in office, and that he is therefore ineligible. However, because “Barak” Obama (as a presidential candidate) does not “file” for candidacy, the Minnesota GOP insists today that this road is closed to us.
Maybe they can find a way around that. (Maybe we can trick Obama into accidentally filing an affidavit of candidacy?) Even then, we’re still stuck. When the Minnesota Democratic-Farmer-Labor Party first selects “Barak” Obama as its nominee, then has “Barak’s” name placed on the ballot, we can’t do anything about that, because—according to the MNGOP—that selection process is part of the DFL’s sacrosanct associational rights, shielded from all legislative and judicial oversight by the First Amendment itself.
Even if we somehow get around the pesky First Amendment and manage to get our case in front of a state or federal judge, we’re still stuck, because, according to the MNGOP, the issue of “Barak” Obama’s eligibility is a non-justiciable “political question,” consigned by the Constitution to Congress and Congress alone! The only thing we can do, according to MNGOP, is wait for the election results and then go to Congress and ask them to please deny the electoral votes for “Barak” Obama on the grounds of ineligibility.
That’s not going to happen, either. The only way to reject electoral votes is by a concurrent vote of both houses of Congress. If the GOP doesn’t control both the House and the Senate, then, the Democrats will happily reject any objection to the electoral votes and “Barak” will be certified the winner and shortly begin his “first” term in office.
Even if the GOP does control both houses of Congress, there’s nothing it can do about invalid electoral votes of this sort under the law. According to the recently-revised Electoral Count Act, the only authorized grounds for an objection to electoral votes is that they are “not lawfully certified”—and the MNGOP just got done telling us at great length that votes must be lawfully certified even if cast for an ineligible candidate—or “not regularly given,” which, again, has nothing to do with candidate qualifications. The Vice President of the United States, Kamala Harris, will be presiding at this session, and she is not going to allow the GOP to get away with violating the Electoral Count Act this time. The GOP will be unable to legally make its objections, much less sustain them, and President Obama will, once again, begin his third term.
There’s no off-ramp here, at least none evident to me. If MNGOP were right about all the restrictions on presidential candidate eligibility challenges, then the only things protecting the country from a third term of President Obama are the deep respect Democratic primary voters hold for the text of the Constitution (uh-oh) and the strong civics education of low-attachment swing voters (here, uh-oh fails to suffice, and we are forced to resort to yikes). According to MNGOP, there is not only no legal mechanism for preventing this violation of the Constitution, but there is no possible legal mechanism for doing so, ever, short of unified control of Congress and the Vice Presidency at the crucial moment plus a radical rewrite of the Electoral Count Act before the fact.
I think that’s bad! I think such a cramped view of the Constitution and our state courts’ role in enforcing it renders large portions of the Constitution effectively a dead letter. If you carefully read one of the law review articles MNGOP relies on, Sweeping and Forcing the President into Section Three, by Josh Blackman and Seth Barrett-Tillman,18 they admit as much! According to them, not only are courts powerless to enforce the Disqualification Clause, but they are also powerless to enforce the original Qualifications Clause setting presidential age and residency requirements! If the voters violate them and Congress chooses not to fix it, they suggest, there’s simply no remedy! These provisions of the Constitution are functionally optional!
By contrast, I think that, as a general rule, when people break the law, other people should be able to go to a court and say, “Hey, here’s proof that guy broke the law. Make him stop.” Especially if that guy is Barack Obama wearing a tiny fake mustache. And so I think MNGOP’s arguments described herein should be rejected.
Well, mainly you should reject them because they’re bad and wrong. But the “dead letter” bit is a nice chaser.
Paid-subscriber preview: the next review will probably be Dredd (the one from July 2012), which I saw for the first time a couple weeks ago. I’m as surprised by this as you are, since nobody’s thought about Dredd since August 2012.
In the filings, they are referred to as the “RPM”: Republican Party of Minnesota. I’m sorry, I was a member of the MNGOP for too long to ever think of it by that acronym. I hope someday to rejoin the MNGOP. Calling it the RPM was and is for squares (and party leadership). Even the website is MNGOP.org. It will be MNGOP throughout this post.
MNGOP is pronounced “Emm-Enn-Gee-Oh-Pee” or, if you are former party chair Keith Downey (from back in my day), it is pronounced “Emm-Enn-Growth-And-Opportunity-Party.”
I have just doomed myself and everyone near this case because, by the Law of Judicial Irony, the court must now decide the entire case on the basis of the justices agreeing with one of the arguments I just insulted.
In Jill Clark v. Mark Ritchie (2010), Clark filed her petition an impressive seven months and change before the general election. I found no case filed more than five months before a primary… but C-Track only goes back 15 years or so and I’m not going docket-diving on every one of them just to satisfy my curiosity, so an earlier case is possible, though practically unheard of.
As you all saw unfold in my public writing, I did not recognize my right to file a petition before the first week of January until August 30, and was not convinced of my right to file a petition before December until several days after that.
The “political question” issue is closely related to the separate but much more interesting “is Section Three self-executing?” issue. However, since the MNGOP mainly discussed the political question doctrine, touched on self-execution only in passing, and left Trump to make the full self-execution argument, I’ll leave that issue for the weekend.
People who have read my occasional veiled critiques (and not-so-veiled) of Wesberry v. Sanders and Reynolds v. Sims can probably guess that I am not a fan of Baker v. Carr, but it is the principal Supreme Court precedent in this area.
I oppose the power of states to bind electors, as it is an abuse of the principles of the electoral college, but it’s become clear that they have that power (and routinely exercise it).
This also happened in the 2000 presidential election in Florida. The electoral vote was ultimately and finally determined, not by the popular vote, not by the recounts, not by the court cases, not by the Secretary of State’s certification (remember Katherine Harris, fellow old people?), but by the direct action of the Florida legislature. I discussed this, briefly, in the December 9, 2020 entry of The Big Civil War Post.
UPDATE 24 January 2024:
It doesn’t even say “the power,” even though many sources (including an earlier version of this article) quote Section Five as saying that! The Fourteenth Amendment, Section Five, as proposed to the state by the Thirty-Ninth Congress on 16 June 1866, as confirmed by proclamation of the Secretary of State upon its adoption on 28 July 1868, reads:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
This is significant, because many sources erroneously quote it as:
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
For the full story of this Misquote (and how it snuck into the original version of this article), see my new post, “Who Misquoted the Fourteenth Amendment?”
Other than adding this footnote, the only change I made to this article in this edit was correcting the phrase “the power” to just “power” in my quotes of Section Five.
There are six total criteria for the political question doctrine, all taken from Baker v. Carr:
"Textually demonstrable constitutional commitment of the issue to a coordinate political department;"
"A lack of judicially discoverable and manageable standards for resolving it;"
"The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;"
"The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;"
"An unusual need for unquestioning adherence to a political decision already made;"
"The potentiality of embarrassment from multifarious pronouncements by various departments on one question."
I only really covered #1, #2, #3, and, to a lesser extent, #4. #5 is not raised by anyone in this case, and MNGOP only sort of swipes in the direction of #6 by arguing that different courts ruling differently could cause embarrassment—but that’s not what that prong of the political question doctrine means, especially not when the Supreme Court can and will ultimately settle any disagreement between courts on this important national issue.
He also sued the electoral college itself, which isn’t even an actual body of people that meets collectively, and, since they had already voted, I genuinely do not know what Grinols was going for here.
Say that ten times fast.
Even if this dumb argument were correct, MN 204B.44(b) contains a separate textual basis for an eligibility challenge that has no mention of candidates “filing”:
The petition shall describe the error, omission, or wrongful act and the correction sought by the petitioner. The petition shall be filed with any judge of the supreme court… Upon receipt of the petition the court shall immediately set a time for a hearing on the matter and order the officer, board, or individual charged with the error, omission or wrongful act or perform the duty or show cause for not doing so. In the case of a review of a candidate’s eligibility to hold office, the court may order the candidate to appear and present sufficient evidence of the candidate’s eligibility.
Instead of trying to explain this away, MNGOP simply ignores it, again hoping you haven’t read the statute.
(To their limited credit, MNGOP at least admits that Donald Trump is a candidate for president. They’ve gone to such lengths by now that I thought they’d try to deny it.)
I don’t usually use the Abridged, but I’m on my phone. It’s hard to rifle through all the volumes on my phone, and I firmly refuse to put more effort into refuting this argument than MNGOP put into making it.
Minnesota does neither of these things. The presidential primary in Minnesota is optional (207A.11(d)), and there is no signature-gathering requirement for major-party presidential candidates in Minnesota. However, the U.S. Supreme Court has said that our state could do those things. Indeed, tough signature-gathering requirements in Virginia kept presidential candidate Rick Perry off the ballot there in 2012.
Don’t tell MNGOP’s lawyers, but “infirmity” is a whole third word that means “disability” or, in this context, “ineligibility.”
To be sure, I’ve only read the original draft of this article, not the revised version posted a couple weeks ago. Haven’t had time yet. If I’ve misunderstand Blackman-Tillman on this point, I honestly would like to be corrected. Although I respectfully disagree with them on most insurrection-related issues, I’m a fan of Blackman in general, and I’m happy to recommend his regular column at The Volokh Conspiracy.
I liked that “Growe had to spend <#> of 39 pages refuting <this claim>” mechanic. You’ve touched on Brandolini’s Law before but I assumed it was only an internet law not something serious professionals use when arguing to a Supreme Court!