Minnesota Disqualification Week: Orientation

Dashed-Off Daily Disqualification upDate for October 26, 2023

THE LAW of Minnesota. (Photo by Tony Webster under a Creative Commons license. He also took some gorgeous fall foliage shots around town that I wish I could find an excuse to put into this post, but you can click that link to see ‘em.)

While I’ve written quite a bit about disqualifying President Trump recently (see here, here, here, and here), there is an actual case underway in Minnesota to take him off the ballot, Joan Growe v. Steve Simon. I have not given a general update on that case since September 21. Oral arguments are coming up already next week, so it’s past time for me to start previewing those arguments.

Note to Bored Readers: De Civitate is eclectic, and I know that your reasons for subscribing to De Civ are eclectic, too. Some of you are here for the reviews, some for the abortion stuff, some for the religion stuff, some for the covid stuff (remember when I was a covid blogger?). Some are just here for the Worthy Reads. I try to serve you all. Sometimes, though, I get fixated on one specific thing. When Roe v. Wade was falling, De Civ became an abortion law blog for like six months solid. If my current fixation isn’t what you signed up for, they can get dull for you. Right now, my fixation is the Minnesota Disqualification Suit. I think it’s important, and I think so few people are writing about it that I can offer something unique and valuable. However, if this is not your cup of tea, take heart: one way or another, this lawsuit will be over within 90 days, and I should have the next Letter To A Growing Catholic finished by then. End of Note.

Since the Minnesota Disqualification Suit got underway, not a lot has “happened.” The case remains in “Phase I”: before the court decides whether President Trump “engaged in insurrection” that disqualifies him from the presidency, it must first decide whether it’s allowed to decide about the insurrection.

So far, that has meant a lot of people writing arguments against one another and emailing them to the court. It’s like Reddit, but on one of the subreddits with really good moderators who demand quality contributions,¹ also footnotes.² Next week, we get live arguments, but they won’t make any sense if you’re not familiar with these arguments. Hence this series of oral argument previews!

Today’s goal is simple: I’m going to get you oriented to what’s gone on during the past month. Tomorrow, I’ll start digging into the actual substance of the arguments. By the time orals start, I want you to understand this case better than at least 99.99% of the American population.³

In theory, you can read all the arguments in this case on C-Track, a service of the Minnesota Judiciary (Case A23-1354).

In practice, a lot of the most important documents, including all friend-of-the-court (“amicus”) briefs, are listed as “not viewable remotely,” which is extremely annoying. You can find those documents instead on the website for the case maintained by the petitioners’ law firm, Free Speech For People. FSFP have been very diligent about posting all substantive documents (for both sides) within 24 hours, often much less. Kudos to them. [UPDATE: In the comments, reader Sathya Rađa notes that the documents are being posted on the MNCourts.gov site directly—and they even have an email subscription option! Thank you, Sathya!]

There have been six rounds of discussion so far, all within “Phase I” of the case:

• The initial petition, which I covered in my initial post.

• The responses to the petition, by Donald Trump’s campaign, the Minnesota GOP, and Secretary of State Steve Simon, which mostly previewed arguments they would make in their briefs.

  • The single most nuts-and-bolts fascinating filing in this whole case to date was the Declaration of David Maeda, Sec. Simon’s elections director, submitted as an appendix to Simon’s reply at this stage. In this declaration,⁴ Maeda described the ballot printing process and the various deadlines, and thus answered all the questions I had about the deadlines a couple months ago.

• Joan Growe filed her brief arguing that the Minnesota Supreme Court is allowed to decide the question of President Trump’s insurrection.

  • She was supported by friend-of-the-court briefs from Professor Gerard Magliocca, CREW, and the Constitutional Accountability Center.

  • Prof. Derek Muller also submitted an amicus brief. Officially, it was a neutral brief. Practically speaking, I think it did a great deal to advance Growe’s position, though it added a few caveats. If you read one thing in the case after you read this post, read Muller’s amicus, because I’ll be dealing with many of the issues it raises tomorrow.

• Then, Steve Simon and the Minnesota Republican Party (MNGOP) filed their replies to Growe’s brief. The MNGOP argued that the Minnesota Supreme Court is not allowed to decide the question of President Trump’s insurrection. Simon took no position on this issue.⁵

  • Donald Trump also filed a friend-of-the-court brief that functionally operated as a third reply to Growe’s brief. I personally thought it was much stronger than MNGOP’s.

  • MNGOP was further supported by friend-of-the-court briefs from the American Center for Law and Justice and the Republican National Committee.

• Growe was then allowed a short response to Simon, Trump, and the MNGOP.

• Finally, after all filings were filed, the Minnesota Supreme Court called the parties’ attentions to a 2012 case called Oines v. Ritchie, where a self-represented individual tried to get Barack Obama struck from the ballot after voting had started. All parties were allowed to file short additional briefs explaining how Oines fits into their view of the law. Secretary Simon decided not to do this; the MNGOP, Trump, and Growe all did.

My Writing (if that’s what you’re into)

My other writing on this case is now collected here:

What Now

Oral arguments are coming up on November 2, which, holy cow, is only a week away.

The Minnesota Republican Party raised a bunch of ticky-tack arguments that largely pertained to specific state-law concerns. They were mostly quite bad, but, because they are so specific (and ticky-tack), there’s been very little discussion of them in the press, including the legal press, at least that I’ve seen. I will therefore get the Minnesota Republicans’ arguments out of the way first. Look for that piece to drop late tomorrow, October 27.

Then, over the coming week, I will consider the far more interesting arguments from the Trump campaign and their amici. Although I don’t think these arguments are successful, there is some credible support for them, and walking through them will both take more time and be extra-rewarding.

Finally, I’ll take a vacation day next Thursday to head down to the courthouse for oral arguments. I have no idea how to do this, as I’ve never actually gone inside the building, but I will do my best to get a nice chair, take notes, and blog the results as quickly as possible (live if possible, but I doubt it). The case will be heard at the Minnesota Judicial Center in Saint Paul, Courtroom 300, at 10:00 a.m. Oral argument is scheduled to last an hour and five minutes.

For the remainder of this post, I’ll address minor issues on the docket that don’t warrant a full post of their own.

The Oines Detour

The fact that the Supreme Court had to call for supplemental briefing on Oines v. Ritchie struck me as embarrassing for everyone (including me), but especially for Team Trump.

Oines is a pretty good case for Trump. In Oines, the Minnesota Supreme Court directly stated that Congress, not state courts, is the sole judge of presidential qualifications. Personally, I think there are number of reasons why that conclusion should be set aside:

1. First and foremost, it’s wrong. For reasons we’ll explore in greater depth over the coming week, the conclusion the court drew is just legally not correct. It happens.

2. Second, the statement in Oines about judging qualifications is non-binding obiter dicta; the case was settled by Mr. Oines’s violation of laches, and everything that followed was unnecessary opining, which does not bind future courts.

3. Third, one of the key reasons it was wrong is because it was so cursory. Nobody actually argued this point, or almost any point in the Oines case. This was partly because the self-represented petitioner—who, I want to emphasize, really did not know what he was doing—was not permitted to engage in oral argument, because he was not a lawyer. Respondent Mark Ritchie briefly brought up the idea of Congress as election judge in an aside, and the Minnesota Supreme Court, shruggingly, without oral argument or any adverse consideration of the question whatsoever, tossed off a two-sentence declaration citing inapposite cases that amounted to a “yeah, sure, that sounds right.” Argument this cursory does not even enjoy the benefit of the doubt granted by stare decisis.

I said all this in an email shortly after I read Oines. Later, I was pleasantly surprised to find that Growe made the same arguments with greater clarity and evidence in her supplemental, so just read that if you need convincing.

However, if you’re a lawyer for Trump, Oines is the Minnesota Supreme Court saying exactly the thing you need them to say in order to win your whole case. You definitely want to cite Oines and convince everyone that it’s good law, not dicta. Instead, Trump’s lawyers were unaware of it, and the Minnesota Supreme Court waited weeks for someone to discuss it only to have to call it to the class’s attention like a disappointed schoolmarm.

Oh, well. Some people are saying that the decision was unpublished. Maybe so. It certainly wasn’t in Westlaw, and I didn’t log it when I did my Minnesota case-law research in September. However, the complete docket is in C-Track (Case A12-1765), which makes me think it’s been there all along and Team Trump (and I) just missed it.

As I said, Growe correctly but predictably attacked Oines as non-controlling and unpersuasive—like I just did, only better.

Trump and the MNGOP’s supplemental briefings on Oines (linked above) were underwhelming. Trump and the MNGOP either did not anticipate Growe’s attack on the value of Oines as precedent, or they did not care to rebut it.⁶ Instead, they assumed it was good law and pointed out how nicely it supported all their other contentions, making lots of soaring statements like, “Oines shines a bright light on Petitioners’ self-defeating arguments.”

To be fair, though, when the court gives you a freebie like this, you should definitely take a moment to run the victory lap around your opponents like you’ve already won the whole case. No shade to Team Trump on that one; I’d’ve done the same.

Miscellany

A few other issues bear mentioning if you are to become True Experts on this case and/or are trying to read the docket on C-Track:

First, there was a brief side drama when Donald J. Trump For President, Inc. attempted to intervene in the case instead of Donald J. Trump, the human being. They were apparently trying to shield Trump from having to take the stand, because 204B.44 specifically says that challenged candidates may need to “appear and present sufficient evidence” to establish eligibility.

Problem: Donald J. Trump For President, Inc. has no right to substitute itself for the candidate. Growe objected and got the campaign thrown out of the case! To my knowledge, this was the one and only story about the case the Star Tribune has run since oral arguments were scheduled.

However, it’s unclear whether this will have any practical impact, since Donald J. Trump, human being, was allowed to file an extra-long friend-of-the-court brief anyway, and is being permitted to effectively refile the same document his campaign originally filed. I am looking forward to seeing whether Trump updates anything his campaign said in light of his problematic reliance on U.S. v. Greathouse, but we’ll find out later this week. Trump also gets to be represented at oral arguments. It doesn’t seem like getting his campaign chucked out actually changed anything.

Second, a local guy named Stephen Carlson tried to intervene in the case. He was denied, but he keeps sending correspondence to the court anyway, asking them to reconsider, which is annoying the court.

Third, as disqualification cases around the country advance, the parties are calling the court’s attention to the outcomes as they are released. The other day, a Colorado court ruled on many of the same issues disputed in this case. Joan Growe & Co. were quick to inform SCOMN.

The rest of what you find on C-Track is going to be routine motions asking for out-of-state lawyers to be added to the case, scheduling orders, and so forth.

Congratulations, you are now an expert navigator of the case. Come back tomorrow and we’ll dive into the substantive issues. But first, one final word of caution, and a commitment from me:

Cognitive Bias Warning

In my experience, people who believe that President Trump engaged in insurrection on January 6 also believe, almost without exception, that all the jurisdictional questions resolve in favor of allowing the Court to rule Trump ineligible.

Meanwhile, people who believe that President Trump did not engage in insurrection (or who believe that it would be bad for the country for the court to decide at all) also believe, almost without exception, that all the jurisdictional questions resolve against allowing the Court to rule on Trump’s eligibility—even to confirm it.

This is, objectively speaking, odd. The jurisdictional questions do not have any relationship to the underlying question of the insurrection. There is no reason why someone who believes President Trump is innocent of insurrection should also happen to believe that the President is not an “officer of the United States” within the meaning of Section Three. Yet almost everyone lines up on just those lines. There are only four possible explanations for this polarization:

1. It’s a crazy coincidence!

2. There’s some hidden legal factor connecting these very disparate issues, like an underlying method of interpretation. However, this doesn’t seem to be the case. If anything, the usual “teams” of textualists vs. non-textualists have been unusually scrambled up by this case.

3. Many people are consciously arguing in bad faith, taking positions that support the outcome they desire rather than honestly considering the arguments on their own merits. This could be one-sided, or it could be prevalent on both sides. There’s definitely some of this, but almost never as much as we are tempted to think.

4. There is a powerful human cognitive bias that makes us reason backward from “Trump did an insurrection” / “Trump did nothing wrong” to adopt whatever unrelated legal position helps condemn Trump / helps acquit him. This process is unconscious, and our fiercely-expressed positions are honestly held… but, unbeknownst to us, we may be blinded by our desire to reach a certain conclusion.

I may not be exempt from this. I have already argued that President Trump engaged in insurrection, so you know which side I’m on there. It also so happens that I line up against Trump on nearly every jurisdictional question as well. That should make you suspicious of me. It makes me suspicious of me.

There are a few places where I break away from others on my “team”: I agree this challenge would be barred by standing in most states; I believe rebellion requires violence; I agree that the definition of “officer of the United States” is a close question. However, these flickers of independent thought are few and far between, and none of them would change the final outcome of the case. I’m really trying to think clearly here, but my conclusions nevertheless have lined up pretty closely with one side in the case.

Therefore, I am trying to watch myself for any unconscious bias against Trump’s legal arguments. I want to do right by the law and the Constitution. I do not want to set a dangerous, unlawful precedent that could someday gore my ox. When it comes time for me to hoisted on my own petard, I want that petard to be carved out of good, sound law, raised without antibiotics in free-range pastures. You will have to judge, in coming days, whether I succeed.

I am absolutely certain, from conversations with people on the “other side” of this question, that—even though they keep reaching what are (from my perspective) uniformly wrong conclusions—most of them are acting in good faith, too. Not all of them, and not all the time. (I will be criticizing one party for acting in what I think is bad faith tomorrow.) Enough of them, though, that all I can do is ask that readers who disagree with me about the Trump Disqualification Suit do their best to be fair-minded in the coming days. That’s all we humans can do.

1. It helps that these moderators, the justices of the Minnesota Supreme Court, have the power to put trolls in actual jail.

2. Love me a footnote.

3. Maybe 99.999%, which would put you in the Top 400 understanders of this case in the entire country, but I don’t want to make a promises I’m not sure I can keep.

4. Useful context: the Declaration refers to a specific “vendor” that “most counties” in Minnesota will use for ballot printing. From my conversation with the good folks at the Secretary of State’s State Fair booth a couple months ago, I am given to understand that this vendor is Dominion Voting Systems, which you may have heard of because it was the center of many conspiracy theories after the 2020 election.

5. Secretary of State Simon is an interesting factor in this case: he is technically the primary defendant, because Joan Growe sued him to keep Mr. Trump off the ballot. However, his position is that he takes no position on whether Mr. Trump should be on the ballot or not. He has consistently insisted that the question is a matter for the court alone to decide.

Each of Simon’s filings so far have supported Ms. Growe’s arguments in that regard, with only one clear point of dispute between them: Growe insists that Simon has the power to take Trump off the ballot by his own judgment. Simon insists that only the Minnesota Supreme Court has that authority under current law. Both agree that the Minnesota Supreme Court should decide it.

Functionally, then, Simon has been helping Growe wherever he can in this case, as long as he can do so without compromising his office’s prerogatives or his official neutrality on the eligibility question. A cynic would no doubt note that Simon is an elected Democrat and, coincidentally, a former student of Michael Stokes Paulsen, the conservative scholar behind the recent surge in Section Three public interest.

However, since I think Simon’s legal positions in this case are almost entirely correct, I see no need to resort to the cynical explanation. In fact, I still personally think that Simon has the better of the argument in his dispute with Growe, and that Growe should not have sued Simon at all. It (still) seems to me that the more correct target of her petition would have been David Hann, the current chairman of the MNGOP. However, this seems to be water under the bridge at this point.

6. In their first footnote, the MNGOP briefly concedes that Oines’s relevant holding might be viewed as dicta, but cites Minnesota precedent to claim that it is still entitled to significant weight.