EXCLUSIVE: Minnesota Says Trump Not Disqualified
...yet.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
—United States Constitution, Amendment XIV, Section 3
Recently, my old professor Michael Stokes Paulsen made a stir with a law review article (co-authored with fellow originalist Will Baude) that made three fairly boring claims followed by a startling one:
Section 3 of Amendment XIV, which bars rebels from public office, remains in force today. Boring.
Section 3 is self-executing. It does not require, nor even contemplate, a criminal conviction for rebellion before disqualifying a rebel. All constitutional actors acting under color of law must enforce it. A state can no more print the name of an insurrectionist on a presidential ballot than it could print the name of a 12-year-old (because presidents must be at least 35). Boring.
Section 3 is not limited to those who actually take up arms in rebellion. Jefferson Davis never fired a shot in the Civil War, but was still disqualified under this section, both because he supported the rebels and (Paulsen and Baude argue) because he played a prominent role in a legal scheme (secession) to prevent the operation of the United States government. Boring.
Therefore, Donald Trump is disqualified from holding any public office in the United States ever again, and this provision must be proactively enforced by every public official, every citizen, and every legislative body with authority to determine what names go on the ballot. Startling! But, if the premises are sound and the conclusion follows…
I have not yet finished their paper, so I don’t think today is the day for me to hold forth on what I think Paulsen & Baude got right, what I think they got wrong,1 and what the implications are.2
However, I am not a constitutional actor with decision-making authority over the names that appear on the ballot! My opinion is interesting (I promise, subscribers!), but, since Nobody Reads This Blog, my opinion isn’t very effective.
Minnesota Secretary of State Steve Simon, however, is a constitutional actor with decision-making authority over the names that appear on the ballot. So, last week, I decided to ask Steve Simon what he thinks of Paulsen & Baude’s argument.
Steve Simon is a Democrat3 serving as Secretary of State in a purple-blue state. Minnesota is the kind of state that Mr. Trump will need to win if he is to win re-election in 2024. There are several similar key purple states with Democratic administrations and judiciaries, including Pennsylvania, Wisconsin, Michigan, and Arizona.4 If Mr. Trump were struck off the ballot in all five of these states, he would be left with no plausible path to 270 electoral votes. Any 2024 Trump-Biden rematch would be over before it began. I have to assume that Sec. Simon and his peers (Sec. Benson, Sec. Godlewski, Sec. Schmidt, and Sec. Fontes) are all aware of this.
Regardless of whether Paulsen & Baude are correct, I became concerned that the Democrats might try a neat trick: allow Donald Trump onto the primary ballots in every state, and then, after Trump was won the GOP nomination for presidency, suddenly “discover” that he is disqualified, then strike him from the general election ballot. If successful, that could leave Republicans thoroughly up a crick. I wanted to get Steve Simon on the record, one way or the other, so that either Trump would be off the ballot for both the primary and the general election, or he would be on it for both. Minnesota’s primary is coming up on March 5th, with ballots printed well in advance, so this must be resolved sooner than you think!
Today, I received a response from Sec. Simon’s office:
Dear Constituent:
The Minnesota Office of Secretary of State does not have legal authority to investigate a candidate’s eligibility for office. In the case of presidential and vice-presidential candidates, the political parties will submit names of candidates to our office – both for the presidential primary election in March and later, once they select nominees, for the general election in November. Those submissions will appear on the ballot unless a court says otherwise.
Minnesota law provides a separate legal process, found at Minn. Stat. 204B.44, which allows one or more people to challenge in court the eligibility of a candidate to appear on a ballot. We will continue to honor the outcome of that process, as we have in the past.
Office of Minnesota Secretary of State, Steve Simon
I think this analysis is correct. Minnesota Statute Chapter 207A.13 prescribes how names on the presidential primary ballots are determined: by the state party chairs. Chapter 208.03 does the same for general elections for the presidency. Sec. Simon believes that the statutes give him no authority to determine eligibility beyond this. In his view, the constitutional duty to initially determine eligibility for the presidential ballot rests with the state party chairs alone. For once, I agree with Steve Simon. The legislature has clearly delegated this authority to state party chairs.
However, that isn’t the end of the story. Courts are always around to review the legality of official acts, including even official legal acts by political parties. Seeking judicial review is often a confusing process. However, in this case, Minnesota Statute 204B.44 expressly lays out the procedure for an eligibility challenge:
Errors and Omissions; Remedy
(a) Any individual may file a petition in the manner provided in this section for the correction of any of the following errors, omissions, or wrongful acts which have occurred or are about to occur:
(1) an error or omission in the placement or printing of the name or description 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; […]
(4) any wrongful act, omission, or error of any election judge, municipal clerk, county auditor, canvassing board or any of its members, the secretary of state, or any other individual charged with any duty concerning an election.
(b) 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 in the case of an election for state or federal office… The petitioner shall serve a copy of the petition on the officer, board or individual charged with the error, omission, or wrongful act, on all candidates for the office in the case of an election for state, federal, county, municipal, or school district office, and on any other party as required by the 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 to correct the error 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. The court shall issue its findings and a final order for appropriate relief as soon as possible after the hearing. Failure to obey the order is contempt of court.
This is pretty interesting. Usually, in order to demand action from a court, a petitioner must have standing. That is, the petitioner has to be able to show not only that the law has been broken, but that he personally has been harmed in some specific way. For this reason, in many jurisdictions, the only person who can sue to remove a candidate from the ballot is another candidate for the same office (who is injured because he may be unjustly deprived of public office).
However, this statute doesn’t seem to have a standing requirements. I am not a lawyer, but its terms seem plain: “any individual”—doesn’t even have to be a Minnesotan!—can file a petition. Maybe there’s some other legal rule in Minnesota that would prevent some rando from filing a petition to strike Trump from the presidential primary or general election ballot, but, if so, I don’t know it.
It may be the case, then, that anyone can force the State to consider striking Mr. Trump’s name from the ballot—including from the primary ballot! To do this, it seems that one would have to wait until the Chair of the Minnesota Republican Party (David Hann) submits the names of the candidates to Sec. Simon, which he must do “no later than” January 2nd, 2024. If that list contains the name Donald Trump, one would then file a petition. One would need to do this quite quickly, because the window between the submission of names and the printing of ballots is narrow.
The petition would need to explain why the candidate is ineligible for office. In Mr. Trump’s case, it is tempting to simply file a copy of Paulsen & Baude’s paper, but a proper legal filing prepared by a proper lawyer (with a much lower word count) is likely preferable. The petition must be filed with “any judge” of the Minnesota Supreme Court. I believe the filer will also have to pay a $550 court fee. Then, the petition would have be copied to Republican Chairman David Hann, as well as to all other Republican candidates on Chairman Hann’s list. (Possibly the Democratic candidates submitted by DFL Chairman Ken Martin, too. Couldn’t hurt, anyway.) Then, the petitioner would have to attend a hearing, prepared to present evidence and win an adversarial hearing. Then, it would be in the hands of the Minnesota Supreme Court (and, probably soon enough, the federal court system). Consult an actual lawyer before acting on any of this.
I explain all this not necessarily to help get Mr. Trump thrown off the ballot. The astute reader has probably noticed that I’m no fan of his,5 but, as I said, I haven’t even finished reading the paper yet, and have not yet formed a judgment on the legal merits. Rather, I lay out the procedure because many people believe this stuff just happens by magic. Like, there’s a law broken, and then the justice-wizards step in and fix it. In reality, applying the law is a very precise, detail-oriented process. It takes a lot of time and a lot of work. Because law is very powerful, this process is inevitably influenced by politics. I can’t help noticing that the Supreme Courts of Minnesota, Wisconsin, Pennsylvania, and Michigan are all controlled by left-wing progressive jurists.
That is where the cracks in our society show up. In my pre-2020 election post, “And The War Came,” I took you through each painstaking and inevitable step of a legal process that culminated in civil war. In so doing, I accidentally predicted (before a single 2020 vote was cast!) a surprisingly large portion of what actually happened on January 6th, 2021, including the impossible choice facing Vice President Mike Pence on that difficult day.6 However, in that article, I was just making it up, and I lucked into (kinda) predicting something that actually happened.
In this case, we are hurtling straight into it. If he is the nominee, it seems almost impossible that we will reach November 2024 without Donald Trump being struck from the ballot in at least one major state, kicking off a titanic court battle—and perhaps much more. In fact, I would lay money on that lawsuit being filed before the end of January 2024. Although this article is only a short start, it will pay dividends to understand what that thicket could look like, when it might start, and what the consequences could be for Mr. Trump, the Republican Party, and the United States of America.
UPDATE 30 August 2023:
Upon further reflection, I think one may not need to wait until January 2nd and the actual filing of candidates’ names with the Secretary of State. 204B.44 allows a claim to be made about an error that “has occurred or is about to occur.”
It seems overwhelmingly likely that Donald Trump will be on the list of candidates GOP Chair David Hann submits to the Secretary of State, whether because Hann believes Amendment XIV, Section 3 does not disqualify Trump, or because Hann does not believe he has the authority to make that judgment, or even because Hann believes Trump is disqualified but fears damage to his political career if he acknowledge it. We need cast no aspersions on Hann to admit that he’s probably going to tell the State of Minnesota that Donald Trump is a candidate for the Republican nomination. We don’t know exactly when that is going to happen. January 2nd is the deadline, but it could happen before then. It is therefore arguably “about to occur.”
Filing a petition a little early could make a big difference. After all, candidate names are filed on January 2nd. Early voting begins January 19th. Ballots must begin printing some time during those two-and-a-half weeks—I would guess, before January 12th. (I am going to ask the Sec. State.) That’s very little time to litigate the question fully. The sooner, the better.
It seems that the worst thing that might happen with a premature petition is the Minnesota Supreme Court will say, “This is too early. Refile later, at such-and-such a time,” and then you’re out court fees but seemingly nothing else.
UPDATE 3 September 2023:
I was at the Minnesota State Fair last night to see The Hold Steady7 making their birthday homestand at the Grandstand. During an intermission, I got some Sweet Martha’s Cookies, donated two to the MCCL booth, and finally swung by the booth for Minnesota Secretary of State Steve Simon.8 I asked about ballot printing deadlines and eligibility challenges, not really expecting an answer, but, by very good luck, one of the two women on duty at the booth last night is closely involved in ballot production for one of Minnesota’s largest counties.9 She was—like everyone I have interacted with in the Secretary of State’s office since 2016—extremely helpful.
In Minnesota, each county handles printing on its own. Each county contracts with its own printer (often Dominion Voting Systems) or prints them in-house. Either way, the lead time required for successful printing and delivery is harrowing. The names on the ballot must be sent to the printer almost immediately after they are received on January 2nd, and they are still barely finished on time. She described how, in a recent Ramsey County election,10 the ballots arrived at 8 AM the same day early voting started.
If someone files an eligibility challenge to a candidate after the party chairs submit names to the Secretary of State on January 2nd, she said, the candidate challenged will remain on the ballot regardless of the outcome, because it’s simply impossible to delay the printing process while litigation plays out.
If a candidate is ultimately found ineligible, any votes cast for the candidate on the printed ballots are simply discarded in the vote-counting process (on March 5th, 2024), as if the candidate had withdrawn after ballots are printed. A good parallel to this is the Legal Marijuana Now candidate in Minnesota’s Second Congressional District, who (in an interesting local custom) traditionally dies suddenly 4-6 weeks before election day,11 after ballots have already been printed.
I am not 100% certain she is correct that votes for an ineligible candidate are simply ignored. I think she is, but this area of law is a bit messy, so I want to confirm it before I depend on it. Under new law passed this year, the law about candidate vacancies in Minnesota (204B.13) no longer applies to candidates for federal office (due to a 2021 federal district court ruling I have not yet tracked down UPDATE: here it is, and the appeal). It is clear from the text that the law governing candidate vacancies never applied to primary candidates (only general election candidates).12 I will update this post (again) when I have more information.
UPDATE 7 September 2023:
I have learned a few things, but I will not be updating this post further until some future date. I’m sorry that’s so vague.
My final note (for now) is that anyone interested in pursuing (or defending) this case should investigate De La Fuente v. Simon (2020), Martin v. Dicklich (2012), Martin v. Simon (2016), Weiler v. Ritchie (2010) (this one is key), and U.S. v. Greathouse (1863), among others.
UPDATE 27 December 2023:
Well, this all got a bit exciting. My further coverage of the Minnesota Disqualification Suit is gathered here:
One difficulty for their conclusion about former President Trump is that, for their argument to succeed, they need to be right about very nearly everything. Fortunately, “right about very nearly everything” is a hallmark of Paulsen papers.
…and probably Baude, too. No shade intended, Prof. Baude!
If Section 3’s sweep is indeed as broad as Paulsen & Baude contemplate, then it seems clear that some (not most, but some) of the George Floyd-inspired protests during the summer of 2020 were, in fact, insurrections, at least for the purposes of Amendment XIV. Public officials who supported, or even merely tolerated them unduly, could find themselves felled by the same sword that fells Donald Trump. But now I am teasing a future article. Let’s get back to the current one.
Technically, a member of the Democratic-Farmer-Labor (DFL) Party, the Minnesota amalgam of the Democrats plus two other defunct political parties from a century ago.
In at least three and arguably all five cases, it is pretty clearly Mr. Trump’s fault that these purple states have Democratic governments, so don’t cry too many tears over the partisan unfairness of it all.
Indeed, it would very likely be to the benefit of the Republican Party to get this definitively resolved in every possible state before the 2024 Republican primary. If the courts find Trump is eligible for office, then a powerful anti-Trump argument is neutered before it can be used to slow his ascent through the primary. On the other hand, if he is not eligible, or at least is struck from the ballot in some key states, better to know that ASAP and adjust accordingly.
To be fair, I also suggested a lot of things that absolutely didn’t happen… although I still think many of them would have if the 2020 election had been ~0.3% closer.
This does not mean I am cool. It means my wife was cool twenty years ago and a tiny bit of it rubbed off on me.
Ah, yes, there it is. This is my typical level of coolness.
I will not identify her, because her answers were off-the-cuff replies to a State Fair rando, not an invitation to plaster her name and words all over the Internet in a time of contentious partisan divisions.
I think Midterm 2022, but forgot to write it down.
Of course, when we vote in general elections for presidential candidates we aren’t truly voting for presidential candidates in the first place; we are actually voting for a slate of state electors, who are still eligible to be electors even if the candidate they are pledged to isn’t eligible to be president. So that’s a whole ‘nother ball of wax. Fortunately, in the primary, we are voting directly for presidential candidates, which simplifies things a bit.
So now I have actually read Paulsen-Baude's paper. They've convinced me on ~99% of their Constitutional reasoning: Section 3 does remain in force today, is self-executing, and does apply beyond those who take up arms. I'm dubious about some of the expansive scope they argue for based on things like Lincoln's letters, but the more definite scope is already quite sweeping.
What I object to is when they try to apply this to January 2021. They're right that someone could be disqualified for supporting the Confederacy even if he thought secession legal, but that's different from disqualifying everyone who supported Trump's legal schemes even if they thought his arguments were correct. (Much less alternate electors - they're an established legal practice, dating back to 1960 Hawaii if not 1876 Louisiana!) Arguments within the system are different from arguments outside the system.
This's a very interesting debate, and I'm looking forward to hearing more... or at least I would be if it wasn't threatening such worrisome consequences to our divided country.
The legal case to disqualify Donald Trump sounds convincing to this layman. But the "self-executing" claim seems dubious. If the secretary of state of any state were to disqualify Trump from the ballot on Section 3 grounds, a court case would immediately result. And that hearing would likely center on the facts of Trump's actions before and during January 6, 2021 and whether or not they constitution an "insurrection" since trump has not (yet) been convicted of any January 6 crime.
That is (and in the absence of that criminal conviction) an evidentiary hearing would have to be held. Can such a hearing be held in the absence of a law implementing Section 3? In the absence of such a law, a negative result would likely be appealed at every step, probably all the way to SCOTUS.
There is another consideration. There is already a possibility of political violence if Trump loses, even on the ballot in all 50 states. If he is removed from the ballot especially in a battleground state (even if a concerted effort is made to do so) -- look out.
None of which is to say Trump should be on the ballot. He should not. But it would take more than a long-dormant section fo the Constitution to keep him off.